Medical board not tough enough?

Monday, May 8, 2006 | 7:23 a.m.

Rankings of state medical boards' serious disciplinary actions for Nevada and other Western states in recent years:

An annual report by a public interest watchdog group has reignited debate about how Nevada disciplines its doctors.

In the report released last month, Washington-based Public Citizen ranks the Nevada board 47th among the 50 states and the District of Columbia. Nevada has been ranked as high as 13th and was 22nd as recently as 2001.

The report bases its rankings on the number of serious disciplinary actions taken by state medical boards per 1,000 doctors during a three-year period. The Nevada board had 28 such actions between 2003 and 2005, or just less than three per 1,000 doctors. Kentucky, which finished first, had three times the percentage of disciplined doctors as Nevada.

Tony Clark, executive director of the Nevada Board of Medical Examiners, said that the methodology used by Public Citizen is flawed:

"We investigate every complaint regardless of where it comes from, and we investigate every malpractice case. But we're not going to let Public Citizen determine how we discipline our doctors."

But Assemblywoman Sheila Leslie, D-Reno, said the continued drop in the rankings is a serious concern.

"Attacking the methodology is a defense mechanism," said Leslie, a member of the Legislative Committee on Health Care. "Whenever we rank poorly, our first response is to attack the study."

Questions about how the board functions go beyond the scope of the Public Citizen report.

Critics have raised concerns about the confidentiality of complaints and some disciplinary actions, certification of new doctors and a perception that the board has become more protective of doctors in light of serious medical issues that include steep malpractice insurance increases and the resulting loss of specialists.

Clark said the board has about 600 open complaints at any given time, ranging from malpractice to bill padding.

The board restricts its investigations to issues of physician competency and only publicly releases information about complaints that result in official investigations. As a result, a doctor could have several, or even dozens, of complaints on a range of issues, but unless he or she faces disciplinary action, the public would not know.

Sen. Joe Heck, R-Henderson, a physician, defends how the board handles disciplinary matters:

"The board is charged with insuring a physician is a competent practitioner," Heck said. "I think if a complaint is based on the medical practice or collateral issues, it does not need to be made public."

Other disciplinary actions - such as letters of concern, which Clark describes as actions that "may cross the line a little but don't rise to the level of malpractice" - are also not made public.

Clark agrees that making those complaints accessible to the public is also unnecessary:

"We provide all of the information that the statute requires."

Leslie said maybe the board should go further than that.

"There's nothing wrong with letting more sunshine in," she said, alluding to sunshine laws that require full disclosure of official proceedings.

Confidentiality is also an issue during the disciplinary process.

Clark said the board's investigative committee might consider a physician's past history of complaints when deciding whether to request a formal investigation.

Once the investigation begins, however, board members can only consider the facts of the specific case before them. Previous complaints cannot be considered, regardless of the number or severity.

In fact, different board members are used in each step of the process to ensure that a doctor's previous history is not considered.

That may explain why a doctor who applied in 2004 for a Nevada license did not think it was necessary to list the 22 malpractice claims filed against him in California.

The doctor, Dale T. Mericle, was denied a license that year but was allowed to re-file in 2005.

"He can apply every other board meeting and pay his 600 bucks," Clark said. "There are probably doctors who hope there are different board members that aren't familiar with the history and they can slip through."

Mericle said he has never settled a malpractice case or had any kind of judgment against him, and his license in California is currently active without restrictions.

"The malpractice complaints were filed when I worked at a maximum security prison and (they) were inmate-generated."

Mericle also was required to undergo a psychiatric evaluation amid concerns that he had performed inappropriate patient examinations while working at an emergency room in Fresno, Calif. He said all of the allegations were baseless, but he acknowledged he did not reveal them on his Nevada application.

He was denied again in 2005 and the board prohibited him from re-applying for three years, which is the maximum restriction it can impose on an applicant.

The closed nature of the board's proceedings makes it virtually impossible for the general public to gauge its objectivity. Short of paying what can amount to several hundred dollars for an official transcript of a hearing, the only access the general public has to a proceeding is through the board's Web site.

As a result, any conclusions drawn about the board's objectivity or competence is usually based on this limited information.

In a March 2005 case involving a patient's death, the following information is available on the board's Web site:

A doctor was accused of failing to monitor, or insure that a hospital staff monitored, the patient's cuff pressure. It was also charged that the doctor failed to order appropriate diagnostics to determine cause of respiratory failure, which was believed caused by tracheal stenosis, which is narrowing of the windpipe.

The case was settled when the doctor admitted he had failed to maintain accurate and complete records of diagnosis, treatment and care of the patient. He was ordered to complete 10 hours of continuing medical education and pay $2,500 for costs and expenses incurred during the investigation.

This information, which is essentially all that is available on the medical board's Web site, could leave the impression that a doctor, whose actions resulted in a patient's death, received a slap on the wrist.

It is entirely possible, however, that more information came to light during the board's investigation that would provide additional support for the ruling. But there is no evidence of that on the board's site.

In such cases, failure to provide convenient access to full board findings could, in addition to denying information to the public, damage a physician's credibility.

Heck said there is no benefit to doctors or the public in providing more detailed information:

"I don't see how releasing this information would protect the doctors. The idea that more information is better has already caused problems in the health care industry."

Leslie doesn't say the disciplinary process has been weakened by the medical crisis or any other reason, but she won't rule out such a possibility.

"There is a perception that Nevada is overprotective of its doctors," she said. "That link could be made."

The first step is for the Legislature to take a closer look at the medical board's procedures, Leslie said.

"Maybe it could be put on the health committee's agenda. We have to hold a public hearing and let's see what can be done."

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