"If (medical boards) don't have proper oversight, patients will get hurt and taxpayers will get hurt," says Iowa Sen. Chuck Grassley, senior Republican on the Senate Finance Committee, which handles Medicare and Medicaid.(Photo: Cliff Owen, AP)
Peter Eisler and Barbara Hansen, USA TODAY
Dr. Greggory Phillips was a familiar figure when he appeared before the Texas Medical Board in 2011 on charges that he'd wrongly prescribed the painkillers that killed Jennifer Chaney.
The family practitioner already had faced an array of sanctions for mismanaging medications - and for abusing drugs himself. Over a decade, board members had fined him thousands of dollars, restricted his prescription powers, and placed his medical license on probation with special monitoring of his practice.
They also let him keep practicing medicine.
In 2008, a woman in Phillips' care had died from a toxic mix of pain and psychiatric medications he had prescribed. Eleven months later, Chaney died.
Yet it took four more years of investigations and negotiations before the board finally barred Phillips from seeing patients, citing medication errors in those cases and "multiple" others.
"If the board had moved faster, my daughter would still be alive," says Chaney's mother, Bette King, 72. "They knew this doctor had all these problems ... (and) they did nothing to stop him."
Mari Robinson, executive director of the Texas medical board, says the Phillips case took "longer than normal, but we followed what we needed to do (by law)." Phillips could not be reached for comment.
Despite years of criticism, the nation's state medical boards continue to allow thousands of physicians to keep practicing medicine after findings of serious misconduct that puts patients at risk, a USA TODAY investigation shows. Many of the doctors have been barred by hospitals or other medical facilities; hundreds have paid millions of dollars to resolve malpractice claims. Yet their medical licenses - and their ability to inflict harm - remain intact.
The problem isn't universal. Some state boards have responded to complaints and become more transparent and aggressive in policing bad doctors.
But state and federal records still paint a grim picture of a physician oversight system that often is slow to act, quick to excuse problems, and struggling to manage workloads in an era of tight state budgets.
USA TODAY reviewed records from multiple sources, including the public file of the National Practitioner Data Bank, a federal repository set up to help medical boards track physicians' license records, malpractice payments, and disciplinary actions imposed by hospitals, HMOs and other institutions that manage doctors. By law, reports must be filed with the Data Bank when any of the nation's 878,000 licensed doctors face "adverse actions" - and the reports are intended to be monitored closely by medical boards.
The research shows:
• Doctors disciplined or banned by hospitals often keep clean licenses: From 2001 to 2011, nearly 6,000 doctors had their clinical privileges restricted or taken away by hospitals and other medical institutions for misconduct involving patient care. But 52% - more than 3,000 doctors - never were fined or hit with a license restriction, suspension or revocation by a state medical board.
• Even the most severe misconduct goes unpunished: Nearly 250 of the doctors sanctioned by health care institutions were cited as an "immediate threat to health and safety," yet their licenses still were not restricted or taken away. About 900 were cited for substandard care, negligence, incompetence or malpractice - and kept practicing with no licensure action.
• Doctors with the worst malpractice records keep treating patients: Among the nearly 100,000 doctors who made payments to resolve malpractice claims from 2001 to 2011, roughly 800 were responsible for 10% of all the dollars paid and their total payouts averaged about $5.2 million per doctor. Yet fewer than one in five faced any sort of licensure action by their state medical boards.
The numbers raise red flags for several experts in physician oversight, including David Swankin, head of the Citizen Advocacy Center, which works to make state medical boards more effective.
"Medical boards are not like health departments that go out to see if a restaurant is clean; they're totally reactive, because they rely on these mandatory reports - and they're supposed to act on them," Swankin says.
Not all doctors who lose clinical privileges or pay multiple malpractice claims necessarily should lose their licenses. In some malpractice cases, doctors or insurers may settle without admitting fault to avoid potentially expensive litigation.
When a disciplinary report shows up, "boards have a range of options," says Lisa Robin, chief advocacy officer at the Federation of State Medical Boards. "It could be a letter requiring that you get training, or it could be monitoring of (a doctor's) practices or, where there is patient harm, it could be something as severe as a (license) suspension or revocation."
The state boards "take their responsibility very seriously in taking actions, being thoughtful, and ... protecting the public," Robin adds.
DECADES OF CONCERN
Concerns about medical boards' accountability date to 1986. That year, the Inspector General at the U.S. Department of Health and Human Services reported that the boards, typically comprising doctors and a lesser number of laypeople, imposed "strikingly few disciplinary actions" for physician misconduct. Several follow-up studies suggested improvements, but the reviews ended in the early 1990s after the Justice Department declared that an Inspector General would have no jurisdiction over state boards that are not funded or regulated by the federal government.
Some lawmakers disagree.
"If (medical boards) don't have proper oversight, patients will get hurt and taxpayers will get hurt," says Iowa Sen. Chuck Grassley, senior Republican on the Senate Finance Committee, which handles Medicare and Medicaid.
Early last year, Grassley and a bipartisan group of senators asked the Inspector General for a "comprehensive evaluation" of state medical boards' performance. But there's been no report, and the IG's 2013 work plan doesn't mention it.
Concerns about the boards resurfaced in a 2011 study by consumer watchdog group Public Citizen. The report was based on the same National Practitioner Data Bank records reviewed by USA TODAY, and it reached a similar conclusion: Medical boards "are not properly acting on (clinical privilege) reports after becoming aware of them."
Yet little has changed since Public Citizen's assessment - and the congressional concern it created. Physicians with records of serious misconduct are clearly still practicing:
• A California doctor made eight payments totaling about $2.1 million to resolve malpractice claims from 1991 to 2008. The doctor's hospital privileges were restricted twice in 2007, once for misconduct that posed an "immediate threat to health or safety" of patients, and surrendered for good in 2008. No action has been taken against the doctor's license.
• A Florida doctor made six payments totaling about $1.1 million to resolve malpractice claims from 1993 to 2009. In 2004, the doctor was hit with an emergency suspension of hospital privileges for misconduct that posed an "immediate threat to health or safety" of patients, and a managed care organization took similar action in 2005. He also kept a clean license.
• A Louisiana doctor made nine payments totaling about $2.7 million to resolve malpractice claims from 1992 to 2007, and at least five payments involved patient deaths, including two young girls. In 2008, a managed care organization indefinitely denied the doctor's clinical privileges. But the doctor's license remains unrestricted.
The doctors' names are a mystery: identifying information is stripped from the Data Bank's public file. Full access is limited to medical boards, hospitals and other institutions that are supposed to weed out bad doctors.
But the tracking system doesn't always work.
THE DEATH OF JENNIFER CHANEY
By the time Greggory Phillips began treating Jennifer Chaney in 2008, the Texas Medical Board had lifted the license restrictions stemming from his previous mismanagement of prescription drugs.
But more trouble was brewing. First, Phillips was caught pre-signing prescription pads, allowing a nurse to put "dangerous drugs" in the hands of patients who visited when Phillips was off and got no "adequate examination," board records show. Then, Debra Horn, a mother of two, died from an overdose of drugs Phillips prescribed.
None of that was public when Chaney's family started seeing Phillips. He treated Jennifer for poor thyroid function and residual pain from neck surgeries after a car accident, board records show. He prescribed a mix of thyroid medicine, muscle relaxants, anti-anxiety drugs and painkillers.
Just before Christmas, Chaney fell in a parking lot and reinjured her neck. Phillips prescribed a high dose of oxycodone, a narcotic more potent than morphine, board records show. He also gave her an added prescription for hydrocodone, a painkiller already included in Chaney's ongoing drug regimen - and one the board later described as "not medically indicated."
A week later, Chaney complained one evening about feeling loopy from her medications. As her husband, three sons and mother headed to bed, she stayed up to watch TV.
She was still on the couch when her mother got up in the morning.
"I noticed Jennifer was on her back, and she never slept on her back, always her side," Bette King recalls. "I didn't think anything of it; I went into the kitchen, and then it dawned on me and I went back into the den and tried to wake her up. And I couldn't."
King yelled for Jennifer's husband, who tried CPR while King called 911.
The paramedics never found a pulse. The autopsy findings: "Cause of death: mixed drug intoxication. ... Manner of death: Accident."
As weeks passed, Phillips' problems mounted.
The medical board, which fined him $1,000 in the prescription pad case, sent notice that it was preparing to charge him with substandard care and prescription drug violations in the death of Horn a year earlier. The Horn and Chaney families each filed malpractice claims, and Phillips' clinical privileges were terminated at North Hills Hospital in suburban Fort Worth.
Yet Phillips' license remained unrestricted. He would keep seeing patients - and mismanaging their medication.
"There's no question that Dr. Phillips had (practice) violations; the question is what authority does the board have to act once those are found out," says Robinson of the medical board. "We want something to happen and we want it as quickly as it can happen. But the system isn't always set up for that. ... That can be frustrating."
TOUGH INVESTIGATIONS, TIGHT RESOURCES
There's nothing tougher for state medical boards than competency and malpractice cases.
"There are laws, there is due process and there is confidentiality, and all those things make it difficult for state medical boards to do what they do," says Jon Thomas, a surgeon and past president of the Minnesota Board of Medical Practice.
"You have to get all the facts and you have to follow the law. And it's complicated," adds Thomas, an officer with the Federation of State Medical Boards. If a board is pursuing disciplinary action, "a good lawyer representing that physician will know all the appropriate levers to push, and they push every one of them. That can take a lot of time."
The cases typically require exhaustive investigation and legal preparation - a challenge for many boards wrestling with tight budgets and short staffs.
As the recession crimped state finances, "we saw a lot of boards having to do more with less," says Robin, the federation's advocacy officer.
With disparate funding and statutory authority, various boards use vastly different approaches to keep tabs on physicians.
Florida spends more than $200,000 a year to have the National Practitioner Data Bank continuously monitor the licenses of all of its physicians, so the board is alerted automatically when malpractice cases, hospital privilege actions and other problems are reported.
In Texas, doctors must submit a Data Bank report on themselves when they first apply for a license (the Data Bank allows doctors to query their own license records), but additional checks are not required for license renewals and are done only if a need arises, such as in complaint investigations. In California, there are no set requirements for checking the Data Bank and it is not queried routinely; officials check doctors' records on an as-needed basis.
"The states vary all over the lot in terms of the resources the boards have, whether they have good leadership, and whether they are regularly querying the (Data Bank)," says Sidney Wolfe, a physician and founder of Public Citizen's Health Research Group. "Some states do a pretty good job; a lot of them don't."
And it's getting more difficult to assess their work.
The Federation of State Medical Boards has stopped issuing medical board enforcement data that Public Citizen uses to rank the rate at which different boards discipline physicians. Wolfe says the federation wants to kill the state-by-state rankings because many boards detest them. The federation says it's figuring out how to release data that don't foster unfair comparisons between states that may have different disciplinary rules.
A LONG LEGAL FIGHT
Phillips wasn't giving up his medical license without a fight.
In May 2009, nearly 14 months after Debra Horn's death, the medical board invited Phillips to a settlement conference. He accepted the board's invitation but didn't accept its deal. That left the board one option: to take the case to a judge.
In Texas, as in many states, medical board complaints are adjudicated in administrative hearings, with their own judges and all the trappings of a full-blown trial. The board spent five months gathering evidence and lining up expert testimony before filing formal charges: negligence, non-therapeutic prescribing, failure to meet standards of care and poor medical decision-making.
Then, just before the hearing, Phillips opted for mediation - and the case stalled again.
"If a physician takes advantage of every hearing, every right to trial, it takes much, much longer" to resolve a case, says Robinson, the medical board's director. "He took advantage of every hearing, everything."
At about the same time, Bette King filed her own, handwritten complaint with the board in the death of Jennifer Chaney. Another investigation was launched.
King wanted the board to exercise its power to issue an emergency suspension of Phillips' license. But the burden of proof is extremely high, and the board's staff concluded that his misconduct did not meet the two-pronged legal test for an emergency order: The conduct has to be egregious and the doctor has to be an imminent, present danger. In 2012, just a dozen cases met that standard.
By the time King filed her complaint, nearly a year had passed since her daughter's death.
"We rely on complaints to (start) investigations, and people often wait a year or more to file," Robinson says. "But to show that a physician is a present danger, it's got to be now. If we are monitoring a physician for drug use and he fails a drug test, we have recent proof that he's a danger today. If we're talking about (actions) many, many months ago, it has to go through the regular disciplinary process."
So the Phillips case dragged on. It would be another year before his mediation, and it wouldn't end there. Throughout the process, anyone who checked Phillips' status on the board's website saw a license in full force - no mention of the malpractice cases or the terminated clinical privileges, even though all of that should have been listed.
"I kept waiting for them to stop him," King says, "and they just let him keep going."
FLAWS IN OVERSIGHT SYSTEMS
By law, hospitals and other health care institutions - from managed care operations to public health centers - must report to the National Practitioner Data Bank when doctors lose clinical privileges in connection with investigations of substandard care or misconduct. Insurers also must report any payments in a malpractice case, regardless of whether guilt was admitted.
In Texas and many other jurisdictions, state laws require similar reporting directly to medical boards, often by doctors themselves.
The reports are critically important - hospitals and other health care organizations typically are the first to know when a bad doctor is putting patients at risk. Yet they are notorious for skirting reporting requirements when they part ways with a physician.
At the start of 2011, more than 20 years after the National Practitioner Data Bank was set up, 47% of hospitals had never reported restricting or revoking a doctor's clinical privileges, according to data from the U.S. Health Resources and Services Administration, which runs the Data Bank. Public Citizen reported in 2009 that some hospitals mask cases by giving bad doctors a chance to resign before investigations are launched, or by restricting privileges for just under the 30-day threshold that requires reporting.
But the group also found another grave problem: Hospitals' peer review committees - the internal panels of medical staff that oversee and review complaints against clinical personnel - often do a poor job.
"Much of the bottleneck in the physician discipline system is in the peer review committees," says Philip Levitt, a retired Florida neurosurgeon who served as chief of the medical staff at two hospitals. "Virtually everything of serious consequence gets balled up or blocked in the peer review process."
The peer review system is rife with bias, Levitt says, noting that doctors on the committees often are inclined to protect their colleagues - or go after those who cross or compete with them. That dynamic invites lawsuits from doctors who say they've been treated unfairly, so hospitals generally are wary of suspending even those doctors who commit egregious misconduct, Levitt adds. Instead, they tend to look for a deal to persuade the doctor to leave quietly with no misconduct finding.
In the rare cases where a hospital does sanction a doctor, he says, "it usually means there were really bad things going on."
In the Phillips case, North Hills Hospital says the doctor's clinical privileges ended in May 2009, not long after Phillips was fined for signing blank prescriptions. The hospital would not comment on why it parted ways with him or whether it had anything to do with misconduct that would have required reporting to the medical board.
Whatever the circumstances, the board never heard about it. "There is no public information available to suggest that a report was ever made," says the board's Robinson.
To this day, Phillips' official profile on the board's website shows that he still has clinical privileges at North Hills. And the malpractice cases, which Phillips paid to settle years ago and was required to report to the board, are unmentioned.
TOUGH CHOICES, IMPERFECT DEALS
Based on a negotiated agreement with Phillips, the Texas Medical Board finally ordered sanctions in the Horn and Chaney cases in April 2011 - more than two years after Chaney's death; three years after Horn's.
The order charged that he "prescribed excessive quantities of high dosages of controlled substances and dangerous drugs ... and engaged in a pattern of non-therapeutic prescribing of narcotics that were being used by (both) patients at the time of their deaths by drug intoxication."
Phillips agreed to pay for independent monitoring of his practice for two years, including quarterly reviews of at least 30 patients' records. He also had to take classes to correct deficient practices, including instruction in treating chronic pain and medical record-keeping, and pay a $3,000 penalty.
But Phillips still was allowed to see patients and continue writing prescriptions.
Repeated efforts to reach Phillips for comment, including requests through his lawyers, were unsuccessful. But Jon Porter, one of his attorneys, said the sanctions were significant. He noted that paying to have a practice monitored and enrolling in the required courses can cost well over $10,000.
Still, the Phillips case wasn't over. In 2012, the board found that he'd continued to mishandle prescriptions while the Horn and Chaney investigations unfolded.
Phillips engaged in "non-therapeutic prescribing" for one patient and lacked documentation to justify the drugs he administered, the board found. In another case, he again prescribed drugs without documenting their necessity - and provided early refills without justification.
This time, the board struck a tougher deal: Phillips had to give up his certification to prescribe controlled substances.
Within a year, he'd stopped practicing, board records show. But last February, the board issued another, final order that forever bars Phillips from treating patients.
Phillips "prescribed controlled substances to multiple patients without documented medical justification ... (and) without adequate evaluation and need," the order charged, noting that he also violated rules by prescribing drugs to family and close friends.
Again, though, the sanctions were negotiated and stopped short of revoking Phillips' license, allowing him to work in "administrative medicine" with no patient contact, such as evaluating insurance claims.
The deal reflects the tough choices the board often faces, Robinson says.
"This doctor was willing to agree to something that's very strict - he'll never be in contact with patients again - or we'd have to go to trial, which could take years, and he'd be practicing for all that time," she says. "This was an immediate solution."
Phillips would have battled to the end.
"We were going to fight them (on revocation), take them to court," Porter says. "His intent was to stop practicing, but he wanted to keep his license. He wanted to go out with some dignity."