Regulation in need of a checkup

Chris Morris

By Marshall Allen, Abigail Goldman

Sunday, Oct. 25, 2009 | 2 a.m.

Protecting Its Own?

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The Nevada State Board of Medical Examiners is required by law to protect patients.

Its primary responsibilities, according to its mission statement, are to license competent doctors, respond quickly to complaints, conduct thorough investigations of doctors leading to appropriate action, and place the interests of the public before the interests of doctors.

The board has repeatedly failed to live up to its mission.

So when the medical board allowed a controversy over whether medical assistants could administer injections to evolve into a near health crisis this fall, observers were baffled — again. It was the latest in a series of board fiascoes that critics say reveal a deeper disease: a medical board that’s broken and resistant to reform.

According to its critics — doctors and lawmakers among them — the board is hampered by conflicts of interest, lacks the will to discipline physicians and is accountable to no one.

Any patient can have a bad experience with a doctor. When things go wrong — whether by accident or because of incompetence or greed — the medical board should respond with prompt action that protects future patients from harm.

Case after case show the board hasn’t fulfilled that mission:

• The board recently spent weeks trying to regulate medical assistants who were administering certain injections, when in fact the board did not have the authority to regulate medical assistants. The controversy, which is now left to legislators to resolve, led to the resignation of Executive Director Louis Ling, who had succeeded in making minor reforms during his year on the job.

• Dr. Dipak Desai, who owned and operated the clinic at the center of last year’s hepatitis C outbreak, is still licensed in Nevada — even though his attorneys argue that he is so mentally incapacitated by a stroke that he should not be prosecuted. Desai is not practicing because of a court injunction, but if it were lifted he could go back to seeing patients. Skeptics say Desai is faking his disability to avoid prosecution. One doctor, who asked not to be identified, wondered how Desai could still have a medical license if he’s mentally disabled.

• Dr. Clifford Carrol, one of Desai’s partners, settled a malpractice case in March 2008 in which he admitted taking about three minutes to examine a patient’s colon, half the time experts recommend. Carrol did not spot colon cancer in the patient, who eventually died of the disease. Carrol has not been disciplined and continues to practice. Ling, after less than two months on the job, acknowledged that the process of investigating malpractice cases often takes more than two years. “Viewed objectively, the process takes far too long,” he wrote in a November 2008 memo to the board.

• The board took no action against Dr. Kevin Buckwalter after the parents of a former patient complained in 2005 that he recklessly prescribed narcotics that led to their daughter’s death. In 2007, Buckwalter admitted during a sworn deposition that he had given the young woman large doses of narcotics without examining her, “because she asked” and that he never kept patient records “because I usually have a routine of the amount of medications that I write.” The board was made aware of the deposition but would not reopen the case despite the new evidence of his care falling far short of medical standards. After the Sun published reports about Buckwalter, the Drug Enforcement Administration, citing nine patient deaths, took away his license to prescribe narcotics. The medical board also took away Buckwalter’s license to prescribe narcotics, but did not take away his medical license.

• In 2007, Dr. Sherif Abdou, a well-known Nevada physician, told the Sun he intentionally violated federal immigration law when he hired foreign doctors to work at Summit Medical Group. State law says the medical board can discipline doctors for bringing disrepute to the profession, which includes violating codes of ethics. But the medical board took no interest in investigating Abdou or other doctors exploiting the immigration program.

Steve Marcus

Dr. Dipak Desai, the majority owner of the Endoscopy Center of Southern Nevada, leaves a hearing at Las Vegas City Hall on March 3, 2008.

• Tony Clark, the board’s executive director during the hepatitis C crisis, told legislators his investigation into the outbreak was hampered by doctors who wouldn’t cooperate because they feared criminal prosecution. Rather than discipline the doctors for refusing to cooperate, Clark and the medical board seemed to accept their excuses. Those doctors are still practicing in Las Vegas.

Criticism deflected, called unwarranted

Medical board members defend their performance and regard criticism as unfair.

Drs. Charles Held and Javaid Anwar, the current and past presidents of the board, respectively, suggest that ongoing criticism is more the result of a public relations problem than a performance problem.

Held said perceptions that the board is failing to uphold its mission are “incorrect.”

“The board has a well-defined process that actually works most of the time, but like any organization ... nothing works 100 percent of the time,” Held said.

Anwar said perceptions of the board vary and are influenced by media reports, but the board has “its heart in the right place and is doing its best to protect the people of Nevada.”

Board member Dr. Benjamin Rodriguez, who was out of town and unavailable to comment for this story, defended the board’s performance in the wake of the hepatitis C outbreak in a May 2008 interview.

At the time, the Sun pressed Rodriguez on the decision by Anwar, then the board president, to allow Desai to voluntarily surrender his license rather than taking formal action that would become a part of his permanent record. Anwar, as a medical consultant, had a contract with Desai to ensure quality at the clinic that had caused the outbreak. Critics suggested that Anwar’s business relationship with Desai stood in the way of his acting in the best interest of the public.

“All our colleagues are very ethical and take our jobs very seriously,” Rodriguez told the Sun. “When people tell me I’m trying to protect some doctors I just say that’s not true.”

The medical board should have been involved in the investigation into the hepatitis C outbreak, but it was not notified in advance and learned of it only when health officials publicly announced that tens of thousands of patients needed to be tested for infectious diseases. Rodriguez insisted the board couldn’t “yank (Desai’s) license” without more information.

Rodriguez was asked if he had read the state statute that allows the medical board to immediately suspend a license if “public health, safety or welfare” is at risk.

“I have not,” Rodriguez said.

Why didn’t the board call for an emergency hearing to gather information and make a decision, the Sun asked Rodriguez. Why not ask health inspectors who were in Desai’s clinic for a firsthand report on his actions?

“That probably could have been done,” Rodriguez said. “But all the threats were taken care of ... There was no immediate threat to the health of the citizens of Nevada” that would have necessitated an immediate suspension, Rodriguez told the Sun in the May 2008 interview.

Law enforcement officials close to the hepatitis C investigation told the Sun that members of the medical board did not cooperate with investigators and were hesitant to provide documents or speak about allegations against their medical colleagues. Under pressure from prosecutors, they cooperated.

Anwar allowed Desai to voluntarily stop practicing medicine — a nonbinding move that was essentially a gentleman’s agreement — so Desai will have no permanent record of questionable conduct if he beats the case.

“That’s something that is probably regrettable,” Rodriguez said. “I was probably out of the loop on that one. I don’t recall being consulted.”

The ability of the board members to meet on a moment’s notice may be hamstrung by their busy schedules. “We’ve got lives to run,” Rodriguez said, when asked about the failure to call an emergency meeting following the outbreak. “We’ve got to earn a living. We have got practices. I’m not a full-time employee of the board. I’m not an employee at all of the board. Am I going to stop my life and disrupt the lives of 20 or 30 patients (to hold an emergency hearing)? Can I do that logistically? No.”

Jean Stoess, the public member of the medical board who resigned during the medical assistant controversy after leaking an internal memo to the Sun, joked about board members leaving for lunch in the middle of meetings.

“Board members should commit the time required to be on the board,” she said.

‘Cronyism’ cited in board appointments

Of the medical board’s nine members — all appointed by the governor — six must be practicing doctors and three are citizens who have never practiced medicine.

The governor solicits nominees, but can appoint anyone he chooses.

This has made board watchers uneasy.

Doctors have whispered, and politicians proclaimed, that appointments are driven by political connections and donations, not qualifications or a commitment to protect the public.

“There is too much cronyism in how they get appointed,” said state Senate Majority Leader Steven Horsford, D-North Las Vegas.

Steven Horsford

In January, the legislative health care committee concluded that the appointment process “lacks transparency, which results in the potential for political influence to play an increased role in the appointing process.” Changes were necessary “in response to public perceptions concerning the capacity of certain boards to maintain a focus on protecting the public, rather than protecting the interest of the regulated health care professionals,” the report stated.

Assemblywoman Sheila Leslie, D-Reno, who has proposed numerous legislative health care reforms in Nevada, said the problems with the board are primarily “political — the ‘you scratch my back and I will scratch yours.’ ”

Sheila Leslie

To resolve these problems, the health care committee recommended legislation last session to require the governor to notify the committee of prospective medical board appointments and allow the committee to submit its own nominees, whom the governor would have to consider.

The proposed legislation could have radically changed who was nominated to the board, and how and why they were chosen. But disagreement in the Senate led to it being dropped.

It was one of many failed reforms.

Members of the health care committee also considered drafting legislation that would require professional licensing boards to be made up primarily of people not employed in the profession they regulate.

That plan fizzled too.

Legislators have also pressed the board to examine its conflict of interest policies, or lack thereof.

Stoess, the recently resigned member of the medical board and a former Washoe County commissioner, told the Sun she thinks that because of conflicts, board members place their own interests above patient interests “60 percent of the time.” She later backed away from that statement, saying: “There may have been some mild conflicts of interest.”

During the 2008 interim session, in the wake of the hepatitis C crisis, Clark, then-executive director and special counsel of the board, was asked by lawmakers about the board’s conflict of interest provisions.

Clark told Horsford that he was unaware of any such provisions, and that the board’s practice was to have members recuse themselves based on a personal assessment, according to minutes of the meeting.

Leslie said it became clear during hearings on the hepatitis C outbreak that board members “could not see any conflict of interest,” even though the problems were “glaringly evident.”

The legislative committee introduced a bill to require medical board members to sign documents indicating they had read and understood state ethics law — a current requirement for every public officer in Nevada, but a redundancy lawmakers thought was necessary.

The bill passed and took effect Oct. 1, but critics say it hasn’t eliminated the problem of conflicts of interest on the board.

Amid the recent medical assistant controversy, Horsford called for the resignation of Rodriguez in a Sept. 22 letter to Gov. Jim Gibbons. Horsford noted that in his private practice, Rodriguez had a medical assistant giving injections while the medical board he sits on was declaring it illegal for other medical assistants to give injections.

Horsford called the discrepancy “disturbing.”

“With the grave responsibility licensing boards are given to protect the public, we cannot overlook board members who tacitly condone illegal conduct,” Horsford wrote to Gibbons.

Rodriguez remains on the board.

Indeed, there is little that legislators, or even the governor, can do to direct the medical board. The board is subject to changes in the law, but in a sense the board is accountable to no one on a day-to-day basis.

When Gibbons called for three board members to step down during the hepatitis C outbreak because of apparent conflicts of interest, they refused and faced no repercussions. Two of them finished their terms and are no longer on the board. The other, Anwar, is still on the board.

Horsford said legislators must “overhaul” the medical board because it appears to put the interests of doctors above those of patients.

Leslie said that for the state to begin adequately regulating doctors, the entire board should resign and be replaced by members who are willing to protect the public.

A proposal to consolidate licensing boards

In 2008, Larry Matheis, executive director of the Nevada State Medical Association, fought for legislation that would consolidate Nevada’s 36 professional and occupational licensing boards under one state department.

Such conglomerate departments, which conduct investigations of all licensees, from social workers to veterinarians to doctors, have become the standard in most states.

Experts say they don’t face the time constraints or conflicts of interest inherent in boards operated by busy professionals licensing members of their own industry. For example, until Ling took the job, the Nevada medical board had not reviewed its statutes since 1985.

Conglomerate departments are also accountable to authority and can standardize and update licensing and discipline procedures across professions.

Between the lines of Matheis’ proposal, the implication was clear: Boards investigating their own are susceptible to corruption, or at least undue influence.

Matheis used the example of the medical board and the Desai case to make his argument for such a department in the press and before the Legislative Committee on Health Care leading up to the 2009 session. Nevada would never resolve issues of public accountability related to licensing boards if they remain in separate “silos,” Matheis told the Sun last year.

Today, however, the boards remain very much in separate silos.

Despite Matheis’ efforts to sell the plan, legislators committed only to request a study of its feasibility.

Matheis said it was bad timing asking for sweeping change when political leaders were consumed by budget issues and controversies connected to the hepatitis C outbreak.

Now, armed with further evidence of the board’s troubles in the wake of the injection fiasco, Matheis has renewed his call for a consolidated licensing board system.

In an Oct. 15 letter to the health care committee, Matheis again laid out his plan for a “Department of Professions” to streamline complaints about and investigations of professional licensees.

“Recent or recurring problems at several of the health professional licensing boards,” Matheis wrote, apparently referencing the debacle with medical assistants and injections, “has renewed interest in taking a comprehensive look at the way Nevada licenses and monitors health professionals.”