Sunday, July 9, 2000 | 10:46 a.m.
A call to the state Board of Medical Examiners reveals that Dr. Irwin Glassman has never been cited for any sort of professional misconduct.
"Dr. Glassman is in good standing, with no discipline (charges)," says a state employee. "That's right. That means no lawsuits have been filed against him."
But a review of Clark County District Court records shows that Glassman, a respected Las Vegas obstetrician and gynecologist, is in the middle of two malpractice lawsuits and has paid to settle another in the past.
In one case, Glassman is accused of perforating a woman's bowel during an outpatient surgical procedure, causing her to undergo further, more serious surgery, including an allegedly unnecessary hysterectomy.
In another case, he is accused of severing a woman's ureter during surgery.
"I don't feel that I was terrible," Glassman, who has practiced medicine in Nevada for 19 years, said. "I may not have been happy with the outcomes in the cases, but I don't think I fell below the standards set for me."
Still, Glassman acknowledges that the system by which the Nevada public gets information about their doctor's performance is lacking.
"There is a balance you have to meet between the medical profession and the public, but we don't have it yet," Glassman said.
Nevada patients, consumer advocacy groups and malpractice attorneys say that the public has little effective means of checking up on their doctor because it has limited access to records, and because decisions about whether to discipline doctors are usually made behind closed doors by other physicians.
But many in the medical field say that the only people qualified to review medical performance are other doctors, and that numerous frivolous lawsuits and subsequent malpractice insurance costs have driven doctors into a defensive stance.
Following the public's rising interest in health care regulation, the Nevada Board of Medical Examiners will be pushing in the 2001 legislative session to expand its disciplinary and regulatory powers.
"The public is beginning to demand this," said Larry Lessly, executive director of the board.
Hospitals and health maintenance organizations have access to physician malpractice payment records through the National Practitioner Data Bank, a government database in Fairfax, Va. But the American Medical Association has lobbied successfully to keep the database closed to the public, arguing that malpractice lawsuits are not a fair way to judge a doctor because some suits are frivolous.
So instead, the public relies on entities such as the state Board of Medical Examiners to negotiate the territory between patient complaints and public reprimands, as well as on the medical community to "self-police."
But the Board of Medical Examiners may not have all of the information it needs to adequately scrutinize doctors. And the board weeds out the vast majority of complaints it does receive as having no merit.
Each year, between 44,000 and 98,000 deaths are caused by medical errors in the United States, according to estimates by the National Academy of Science Institute of Medicine. The Journal of the American Medical Association reports that there are 17 malpractice claims per 100 full-time physicians per year in the United States.
In Nevada, the Board of Medical Examiners -- the medical licensing arm of state government, made up of six doctors and three laypeople -- investigates between 600 and 800 complaints annually against some of Nevada's nearly 5,000 licensed physicians.
Formal hearings
But only about 20 of those end up in formal hearings that might result in public disciplinary actions, according to Lessly.
In 1999 the board took disciplinary action against 15 physicians, revoking 10 licenses and fining or limiting the practices of others. In 1998 the board took action against 16 physicians, revoking eight licenses.
"We've taken a very strong position on behalf of the public here," said Lessly, who argues that the doctors in Nevada are well-regulated and that the state is progressive in its review processes.
"But a malpractice claim doesn't necessarily initiate an investigation by the board. You don't take such cases at face value. Many of these cases are frivolous," Lessly said.
"Who should decide whether they are frivolous?" said Jan Markley, a Las Vegas malpractice attorney. "You've got patients walking into doctors' offices everyday who have no idea that the doctor has settled three or four lawsuits for malpractice."
The board's decisions are not subject to judicial review.
The medical board's newsletter explains:
"The attorney general's office occasionally receives letters and phone calls from patients who are upset that the board has decided not to pursue certain disciplinary cases ... neither the attorney general nor the courts have any authority to interfere with (the) exercise of the Investigative Committee's discretion."
In addition to complaints from the public, the board is by law supposed to receive information about physician malpractice lawsuits from courts and hospitals.
But Clark County District Court completely fails to report malpractice judgments to the board.
"The courts are required to send that malpractice information to us, but they do not," Lessly said. "We would use that information as the impetus to get our own investigations going. But who do you get to oversee the courts?
"If the courts did what they are supposed to do, we'd know more. But the courts don't report."
District Court Clerk Shirley Parraguirre said she was not aware of the law that required her office to report such judgments to the board.
Parraguirre is seeking an opinion from the district attorney to determine how the courts should set up a process to notify the medical board.
And, Lessly said, "there is no real review of whether hospitals report."
Nevada ranks No. 1 in the nation in hospital privilege restrictions -- that is, restrictions on a doctor's eligibility to perform certain procedures in the hospital, according to the National Practitioner Database.
But the state ranks 30th in licensure actions taken by the board.
A doctor's hospital privileges may be restricted by administrators for offenses ranging from egregious malpractice to untimely paperwork filing.
"They do not necessary represent problems with patient care," Lessly said.
Eighteen states, not including Nevada, require hospitals to report a broader category of "medical errors" in addition to lawsuit judgments to the government.
President Clinton is pushing for the remaining states to adopt similar laws, threatening to introduce federal legislation if states don't warm to the idea on their own.
"We are going to ask the Legislature to put more teeth in the law next session. Right now, there's no teeth -- nothing to require hospitals, courts, and medical schools to tell us about these things. We're going to push for maybe a fine or something to make them report," Lessly said.
Understanding medicine
The main argument against making public all complaints, hospital reprimands, and malpractice lawsuits is that laypeople are not equipped with enough medical knowledge to understand the gravity, or lack thereof, of such complaints.
"How do you satisfy the public's need to know? I don't deny the public's need to understand and have a feeling for the talent or abilities of their doctor," Glassman said. "But the system, as it is now, doesn't lead to that. "But what you see in the black and white, in the District Court records ... doesn't always reflect the abilities of the people involved," Glassman said. "Not every (complaint) is comparable to having a problem."
Nevada does have an additional mechanism set up specifically to weed out frivolous medical malpractice lawsuits -- an entity unique to this state -- called the Medical-Dental Legal Screening Panel.
The Legislature created the panel in 1985, in response to an increase in medical malpractice insurance costs.
"It was intended to give guidance to attorneys as to the likelihood of trial success," said Don Aimar, Division of Insurance legal counsel. "And for years, they have felt that it is working as a method of screening out frivolous lawsuits."
The panel is made up of three doctors, three lawyers, and the occasional hospital administrator, assigned new for each case from the Nevada State Medical Association, the Nevada Trial Lawyers Association and the Nevada Hospital Association.
It reviews and votes on the merits of every medical malpractice lawsuit before it goes forward in District Court. The panel meets in private -- no one, not even the plaintiffs in the case or attorneys involved in the case -- are allowed into deliberations.
The panel's decision is forwarded to the Board of Medical Examiners. If the panel decides that a case does not have merit, the case is not precluded from being tried; however, the panel's judgment may be admitted as evidence in a jury trial, where "it has teeth," says attorney Gerald Gillock. Between July and April in this fiscal year, 128 medical malpractice cases were opened by the screening panel.
The Division of Insurance would not produce records showing what percentage are deemed meritless. Aimar said the division "does not track the outcomes, but keep in mind, it was created to screen out frivolous suits."
Gillock, a plaintiffs' medical malpractice attorney who was a staff attorney at Sunrise Hospital in Las Vegas from 1975 until 1992, said that some weak lawsuits make it into court, but the problem of frivolous suits is less pervasive than some would think.
"We reject a great number of cases because we don't think we have the manpower to handle them," Gillock said of his firm, which has 95 cases open right now.
"The idea that there are all these frivolous lawsuits is absurd because attorneys can't afford to take on unlikely cases. The cost involved is ridiculous. It costs between $5,000 and $15,000 before you get to trial.
"For example, a case where a person is put into a coma for three days due to medical malpractice, but comes out OK -- we wouldn't even take it because there is no real remedy for the person," Gillock said.
Gillock said families who have lost sick, elderly parents in cases of wrongful death sometimes have trouble getting someone to take their cases, because juries may decide that the quality and expected duration of the patient's life wasn't worth enough money to cover the costs of litigation. The Journal of the American Medical Association reports that 70 percent of malpractice claims terminate without payment to the plaintiff.
Malpractice suits
Glassman said the public shouldn't discount the preponderance of medical malpractice lawsuits, but needs help interpreting the merits of those lawsuits.
"If you're a doctor with lots of lawsuits and settlements, well, you may have a case of 'Where there's smoke there's fire,' " Glassman said.
"But it's misleading to just say how many lawsuits were filed. Many are settled for thousands of dollars just because doctors lose too much money running to various hearings and being out of the office -- to avoid the stress of going to a lawyer's office or a courtroom. We will just as soon settle it -- it's not worth fighting.
"Unfortunately then you see 'Doctor settled' on the documents. But it doesn't always mean he's incompetent," Glassman said.
"If a layperson were to read it they may not understand it. It's complicated," Glassman said.
"How do you educate the public? I don't know. We spent 10 years getting this education. How do you bring it together? I don't know," Glassman said.
But Gillock said that other doctors cannot be relied on to help the public interpret accusations against doctors.
"The presumption is the medical profession has best ability to monitor themselves -- but they don't," Gillock said.
"There is a conspiracy of silence among doctors. They refuse to take the responsibility for policing their colleagues.
"I used to teach seminars to doctors. My seminar was called, 'You've Been Sued -- Now What?'
"I taught them not to talk about other doctors' cases, ever. Without a doctor talking as an expert witness, there is no malpractice," Gillock said.
Glassman said he was never instructed by anyone not to talk about other doctors' performances.
"But on a personal basis I don't want to testify against another doctor. I don't want to be in court at all," Glassman said.
"Peer review is as good as any political system can be," Glassman said. "It's as good as we've got right now... "There is no simple answer. But I would say it's at least safer now than it was 15 or 20 years ago."
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