Not all disciplined in malpractice cases

Friday, March 1, 2002 | 4:56 a.m.

WEEKEND EDITION

CARSON CITY -- As the debate over medical malpractice insurance heats up, records show doctors who are hit with big court judgments often are not disciplined by the state.

The crisis so far has focused on rising premiums or the lack of insurance for doctors since Nevada's main malpractice insurer decided in December to drop coverage.

Some question whether weeding out incompetent physicians would help ease the crisis by driving down malpractice judgments and thus rates.

A review of four of six medical malpractice judgments against doctors in Clark County in the past two years revealed none was disciplined by the examiners board.

In the other cases, board records did not show whether an insurance company paid a judgment. State-licensed insurance companies are required to report to the board judgments paid, but doctors can get coverage from out-of-state insurers.

The cases were six out of 13 judgments medical malpractice cases in 2000 and 2001, according to the 8th Judicial District Court. The others were against hospitals or medical groups.

In the four cases:

A board spokeswoman said none of the doctors was disciplined.

Spokesmen for both doctors and lawyers who represent plaintiffs in malpractice suits say a large judgment should not mean automatic restrictions on, or suspensions or revocation of, a physician's license to practice medicine.

"It is very difficult to make a call (on discipline) based on a single case," said Larry Matheis, executive director of the Nevada State Medical Board. "That's why the board usually seeks a pattern or a perpetuation of behavior. But it has, on occasion, taken action only on one case."

Bill Bradley, a prominent trial lawyer in Reno who represents victims in malpractice cases and is a lobbyist for the Nevada Trial Lawyers Association, said that an "isolated incident in a negligence case, absent egregious circumstances, does not automatically justify disciplinary action.

"People can make mistakes," Bradley said. "A person's livelihood should not be destroyed because of a mistake, but repeated mistakes are unacceptable."

Matheis said the difference between the court judgments in the four cases and the decisions by the medical examiners board not to discipline in those cases is that different standards are applied by the board and the courts. The board "looks at the competence and judgment of a physician and if he or she meets the basic standards to continue licensing.

"The court is concerned about specific allegations and especially the outcome and allocating the responsibility," Matheis said.

From a review of the board's decisions in 2000, the examiners seem more likely to act when doctors lie in their license applications than when they err in actual practice.

It revoked 12 doctors' licenses in 2000, the last year for which the statistics are available. Another was put on probation, and three others were disciplined, which can range from a public reprimand to a required supervision while practicing.

Only one doctor was punished for alleged malpractice, but the board disciplined 10 doctors who lied or withheld information on applications for licenses, according to summaries posted on the board's website.

One doctor was suspended because the board questioned his mental competence. Three others were under investigations that were not described.

The board is less inclined to discipline for malpractice because in almost every serious case of malpractice, multiple failures have occurred in a complex health-care system, Matheis said.

However, the legal system looks for a single person at fault, he said.

"Part of the problem is the medical malpractice law is built on an earlier law of accountability," he said. "There was a time when a doctor performed the procedure by himself.

"Those days are long gone. The doctor is part of a complex scheme. But the system still tries to hold one person accountable for the outcome, and it may not be a single person's responsibility."

The board is right to look for a pattern before acting, Bradley said.

The board already looks at all possible malpractice claims through its medical screening panel, which is composed of doctors and lawyers who review all proposed lawsuits before they proceed to court.

When there are "repeated instances of malpractice, there should be consideration given to increased disciplinary action," Bradley said.

But the public also has a right to know about repeat violators, and currently does not, he said.

"It is very difficult for the public to find out if there are repeated violations," he said. The Nevada Trial Lawyers Association "wants to open the cloak of secrecy at the board," he said.

It also wants reports of errors made by hospitals or other medical personnel to be made public. "Many times, they are concealed," Bradley said.

The Legislative Committee on Health is looking into the reporting of medical errors.

The screening panel reports the outcome of every case to the medical examiners board. It then investigates the cases where the panel either found probable cause for malpractice or those it was unable to decide.

All investigations are confidential. The case only becomes public when disciplinary action is taken against the doctor.