Can a district attorney represent both the state and the accused at the same time? Can the AFL-CIO represent both management and labor at the same time?
Can state medical boards represent both health care professionals and patients at the same time?
The British finally realised the fundamental conflict of interest in that (see Reform), but the USA still hasn't. Here in the USA people still scream at state medical boards as though they are not doing their job when they protect health care professionals at the expense of patients. That screaming is a failure to understand the problem. It is a misdirection of thought and energy. It is continuing to believe in the tooth fairy and failing to put both feet on the ground and take steps in a direction that can reach a solution.
State medical boards are quasi governmental bodies run by members of the group they are supposed to regulate. The fact that anyone is surprised to learn that they lobby for doctors and not patients can only be because people still believe in the tooth fairy where medicine is concerned.
Analytical tool for Understanding Medical Board through their Disciplinary Actions
Divide the disciplinary actions of a medical board into two groups – those that result from the complaints of patients and those that don’t. You will find how infrequently disciplinary actions result from the complaints of patients (roughly never for most medical boards). The boards aggregate their disciplinary actions in a way that allows them to imagine that they are responsive to the complaints of patients (covered in more detail in the second half of this page).
Medical boards are run by physicians who have a personal and professional kinship with those they are supposed to regulate. They do not operate in the interests of patients. They do an excellent job of persuading everyone of the opposite, but did you ever see a medical board lobby a state government to get liability limitations for patients?
How better could they represent their peers than to persuade everyone that there is no need for patients to have representation of their own?
What if we disbanded all state medical boards and in their place created boards of patients to handle these issues? Would caregivers still think that one board could represent the interests of both parties?
When state medical boards find that 100% of complaints filed by patients are frivolous, injured patients become skeptical of the impartiality of the boards, but caregivers conclude that it just goes to show that all those complaints were frivolous.
The extent to which self-interest governs belief and perspective is unappreciated in medicine.
Ohio State Medical Board
I use the Ohio State Medical Board (OSMB) as an example. Its mission statement is here.
As an example immediately below is an account of how the OSMB handled the complaint of one patient. Below that one year of the disciplinary actions of the state medical board of Ohio are analyzed.
A patient complained to the state medical board of Ohio that a surgeon had, among other things, falsified her records a long time after the operation. Under oath, in front of lawyers and a court reporter, the surgeon admitted to doing this (I have a copy of the transcript). The patient presented that to the state medical board. The board said that they didn't believe that he did that. She pointed out that he said that he did, and that he said it in a deposition under oath. They said he must have been lying because they didn't believe he did it.
That is what happens when patients go to state medical boards with complaints. The boards advocate for the caregivers. They do not believe the testimony of patients, no matter what evidence the patients present, and they do not advocate for patients. Only fools would imagine that a medical board could advocate for both patients and medicine at the same time.
It is in the interests of medicine that we be fools.
It is in the interests of patients that we not.
Someday those words will seem obvious and tame. Right now medicine regards them as fighting words. But for Christ's sake, there isn't even any place a patient can go to report it when hodads or criminals with medical degrees ruin their lives - at least no place that is better than a dead letter box. Just ask some of the victims or read what little literature there is about it. The mere fact that there is no one in medicine who understands this is enough to demonstrate why patients need their own representation, like a State Patients Board.
Summary of a Year of Disciplinary Actions
I went through all the disciplinary actions of the Ohio State Medical Board for one year and found no disciplinary actions that resulted from the complaints of patients. They resulted from things like getting too many DUIs or failing to maintain continuing education requirements or trafficing in narcotics and getting caught by the police.
That their disciplinary actions do not result from complaints filed by patients is hidden by lumping all of the disciplinary actions together as though some of the actions resulted from concerns reported by patients.
Not only do State boards not mount acceptable responses to problems that patients report, but they also do not look for problems that patients would be unlikely to report, like psychiatrists with criminal records trading drugs for sex.
A custodian in a public school will lose his/her job for getting a criminal record, but a physician will not. Such a physician will be allowed to continue dispensing controlled substances to addicts even after repeated offenses being tallied on his/her rap sheet because state medical boards do not check. Passing laws to make them check would be a naive response to the problem. Their hearts are not in it. Their loyalties are to the people they are supposed to discipline. And that is the overriding point for why patient safety is the problem that it is. They are the wrong people to do that job.
State medical boards are not in the business of protecting patients. They are in the business of advocating for caregivers. They discipline health care professionals only when put in a position in which they have no other choice. Until then, they find ways around it.
When things go wrong in medicine the interests of patients and providers are in conflict. Both sides need advocates. Medical boards side with the people they always have represented. Efforts to make medical boards more attentive to the interests of patients are unrealistic and misinformed. Patients need their own board representing them.
The above is a short summary of the information covered lower on this page. If you don't believe the summary and want to see the details for yourself, keep reading this page. Otherwise, click Next.
Ohio State Medical Board Disciplinary Actions
For the raw data on which this summary is based, click disciplinary actions. This is public information that, as far as we can determine, never has been analyzed in this way, which in itself is an important comment on healthcare professionals as worthy trustees of patient safety (as is this other information about the state medical board of Ohio).
The board receives about 3000 complaints per year, roughly half from patients. As an example, I have analyzed their results for the year 2001. (A cursory overview of two additional years found the same results). In 2001 it appears that not one single complaint filed by a patient resulted in justice or discipline. In that year there were a mere of 143 disciplinary actions (a percentage that is normal for them), but most were the equivalent of secretarial actions, responses to actions taken elsewhere. These numbers are public record and can be gotten from the Ohio State Medical Board.
Of the 143 total disciplinary actions:
35 were "Out-of-State," which means the board responded to someone else's investigation
36 were responses to criminal convictions - again, someone else's investigation
2 resulted from Department of Defense investigations
So the first 73, or slightly more than half, have nothing to do with complaints filed by patients in Ohio or investigations conducted by Ohio State Medical Board investigators.
Of the 70 cases remaining:
48 cases were impairment issues. These typically result from physicians voluntarily entering recovery programs or sometimes getting too many DUIs (both of which create paperwork/trails). Having these result from complaints filed by patients and/or investigations conducted by the medical board would be unlikely.
Of the 22 cases remaining:
8 were continuing education compliance issues (paperwork)
2 were automatic suspensions resulting from failures to pay child support (paperwork)
1 was a massage school whose problem was noted as "school app issue" which sounds like more paper work.
Of the 11 remaining disciplinary actions:
6 involved prescribing issues, sometimes with additional charges
1 was fraud in obtaining license
1 was unlicensed practice
1 simply was listed as fraud
1 combined impairment, criminal actions and licensing issues
1 was a voluntary surrender of license after minimal standards of care issue(s)
It's unlikely that even any of these last 11 resulted from complaints filed by patients. The odds of a patient's complaint resulting in justice effectively are zero.
Are Health Care Professionals reliable trustees of Patient Safety?
This might be all we need to know to understand why the rate of unnecessary death and injury in medicine does not improve. This might be all we need to know about whether peer review ever can clean up medicine.
Things for which no one is disciplined include sexual abuse, rape, assault and the myriad other evils in which humans indulge when normal inhibitions (like consequences) are removed from their environments.
Diagnostic evidence is extremely difficult to obtain (see wall of silence) and regarded with no esteem by the board when it is obtained (as is covered in more detail elsewhere on this site). The testimony of the patient carries no weight either. That's what a complaint is - the testimony of the patient. If it carried any weight at the OSMB, at least some of the complaints of patients would move forward to discipline. But talk to a few of the people who have been through the process if you want first hand testimony about that.
Onus on patients
State medical boards put a large part of the investigations in the hands of the patients. For one thing, they ask patients to provide them with a paper trail of the problem. Apparently state medical boards do not understand how seldom there is a paper trail, and how unlikely it would be that a patient would be able to find it and recognize it if there were one.
Consider the case of Dr. James Burt. Mutilating hundreds of unsuspecting patients does not leave a paper trail. Who would create one? Not the nurses (see survey). Not the hospital. Certainly not the doctor himself. If patient testimony were considered evidence, on the numbers alone the Burt case supplied more than enough. If diagnostic evidence ever were regarded as being substantial or probative, all the injuries sustained by these women would have meant something to the Ohio State Medical Board.
When the Ohio State Medical Board finally revoked Dr. James Burt's license it was in response to an investigation done by a news team (who considered patient testimony and diagnostic evidence to be probative).
Four years after Burt had been exposed, the Ohio State Medical Board still was claiming to be investigating the medical personnel who failed, and/or refused, to report him. No one ever was disciplined as far as can be determined. Not even Arthur Richard Schramm. If they did not do enough of an investigation to discipline him, they cannot be doing meaningful investigations of anyone.
Arthur Richard Schramm co-authored a paper with Burt that made such outrageous claims that anyone who read it would have to have serious doubts about Schramm's fitness as a medical practitioner even without worrying about his association with Burt. The state medical board not only did not question whether he participated in it, they did not even figure out if knew about it.
Eventually, Schramm got a criminal record that immediately would have been brought to the attention of any public school and resulted in his dismissal. But apparently such things are of no concern to the state medical board. They allowed him to continue prescribing controlled substances to addicts and trading sex for drugs.
The public thinks that someone watches these things to protect them. No one does. And no one listens to patients when patients complain about them.
The system is still geared to protecting doctors' reputations rather than protecting patients from unnecessary harm, according to Dr. Phil Hammond.
When the Ohio State Medical Board still was claiming to be investigating the medical personnel who failed, and/or refused, to report Burt, the public believed them. But honestly investigating is not what the Ohio State Medical Board does. That is not what other state medical boards do either. They may have asked some questions of the medical personnel who did not report Burt, but they did not discipline anyone for failing to report him. They did not even find a reason to wonder about Arthur Richard Schramm. Schramm did not get disciplined until twenty years later, and then only because a stepson with access to Schramm's files made a case to the State Medical Board that even they could not ignore. But they did not do the investigation. Someone else did. And it was an investigation that could not have resulted from complaints filed by individual patients. Their testimony is not regarded as probative by the OSMB and it is not shared with anyone else. It is buried where patients cannot learn what they did about the problems and cannot learn from the experience of other patients.
Patients have no dog in this fight. There is no one advocating for them in this process. It is done behind closed doors by people who do not have the interests of patients at heart.
The Rest Of The Complaints
So what happens to all the rest of the complaints? Out of roughly 3000 complaints that are filed during any year, between 2,800 and 2,900 are dismissed, often for lack of evidence. When they cannot dismiss a case for lack of evidence, they have been known to sit on a case until it is cold and then dismiss because of suddenly discovering that they are not charged with enforcing the laws applying to that case. Which is a perfect way to prevent the laws from being enforced in medicine.
Police departments, often as a matter of policy, do not duplicate investigations done by other agencies. And no one but the police is authorized to investigate crimes and bring them to county prosecutors. Once a medical board accepts a criminal case, the police no longer will, and the medical board thereby has guaranteed that no one authorized to bring criminal charges ever will investigate it.
"...declaring themselves invested with power to legislate for us in all cases whatsoever."
-a grievance listed the Declaration of Independence
This is having it both ways. They accept cases they are not authorized to accept and then dismiss them as though the accused are innocent. When they cannot dismiss them, they decide that they were not charged by law to handle them, and then they dismiss them on that basis. Which has the same effect as finding the accused innocent.
By this arrangement, medical boards themselves almost never have to find anyone guilty. They just respond to it when someone else does and use that to claim to be policing medicine. Patients can have their lives intentionally ruined by miscreants in medicine, for example by sex abuse. Is sex abuse a crime or is it not? If it is, the Ohio State Medical Board legally cannot accept those cases. It does accept them. And it does dismiss them. It is not a law enforcement agency authorized to investigate and prosecute crimes. So it doesn't matter how much evidence is presented by the patient. If the amount of evidence is so compelling that the case cannot be dismissed for lack of evidence, suddenly they discover, as though for the first time, that they are not authorized to investigate crimes, and they dismiss is on that basis.
It is on that basis that they should not accept criminal cases. When this was pointed out to them multiple times, it made no difference. They are a guild that represents the interests of health care professionals, not patients. By accepting such cases, they protect miscreants in medicine by causing the cases to become impossible to be pursued by anyone else.
All of this suggests that healthcare professionals are not fair, impartial and motivated in matters requiring them to discipline their own colleagues. It suggests that the well being of patients is not their highest priority.
What's frivolous is the way claims are treated
The Ohio State Medical Board is regarded as one of the best boards in the country. It is considered to be a model for the others. And yet the odds of its arriving at justice in response to the complaints of patients effectively are zero.
Although the board members work hard for little compensation and make difficult decisions, they share the perspective of the people they are supposed to discipline, not the perspective of the patients who need to be protected. All indications are that it is run by and for healthcare professionals with an investigative arm set up to placate, if not defeat, patients while claiming to do the opposite. I had written extensively about that here, providing information to support that conclusion, but because of the nature of jurisprudence in this country, had to remove it. I'm not even allowed to say much about that. That fact alone should ring alarm bells.
No organization can rise
above the constraints of its leadership
There are people who spend their lives learning to be managers. They get advanced degrees in management fields. They become junior executives and climb the management ladder learning as they go. That is not what physicians do. The physicians who end up in charge of an organization like the Ohio State Medical Board are not people with the tools or the time or the inclination to understand the organizational problems of the bureaucracy they lead. On the board they act more as jurists than managers anyway.
Citizens think that licensing agencies exist to ensure competence and to protect citizens. Most do not. The Ohio State Medical Board is one of the best organized and best funded boards in the country. But it is run by physicians who used it to lobby the Ohio state government to enact liability limitations to protect physicians. They did not use it to lobby the government to enact measures that would protect patients.
Protecting physicians appears to be its real agenda, not protecting patients. Even with 22 full-time investigators the odds of its arriving at justice in response to a patient's complaint effectively are zero. With all of its resources, it has been organized by the constituency that it is supposed to oversee. It may be that physicians who think "frivolous" whenever they think "lawsuit" also think "frivolous" whenever they think "complaint."
One is forced to conclude that the Ohio State Medical Board thinks that its job is to protect medicine from bad patients. As an antidote, we need state patients boards.
See State Patients Board
on this site
Patients in Ohio who have been the victims of violence or abuse or neglect in healthcare settings would best be advised not to waste energy on the Ohio State Medical Board's complaint process (and there is reason to believe that many give up once they attempt to - something else that the board has not studied and refused to allow to be studied when I asked to do that) unless they first have gotten the problem investigated by a third party and can provide an undeniable paper trail and witnesses. That would be a very rare situation. And even then, it would be unlikely to produce results.
From the minutes of the December 2009 meeting of the Ohio State Medical Board is this from W. Frank Hairston, a member of the board: "Mr. Hairston stated that he’s not a physician, and in his life, you don’t get breaks like this. He stated that he’s a marketing director by trade, and he’d be in jail for some of the things he sees doctors do every month for the past two years."
In California Marc Parker, who was the public health department’s investigations chief for much of the past decade, said, “I was appalled. There were hundreds and hundreds and hundreds of unassigned, uninvestigated complaints in file drawers.” Cases involving abuse, already months if not years old, were dismissed with a phone call. More than 230 simply read “physical or sexual abuse” with little else recorded beyond a date and county. The California public health department rarely takes action even in the face of damning evidence (footnoted here on another site).
It is the same everywhere in medicine. They hire people who are on the same page that they are on. Even patient advocates are screened to make sure they are on the same page. People who are not are eliminated so that you end up with a chief of investigations who is so clueless that he is surprised to learn that no one there is sincerely trying to protect patients - not even from crime.
Patients need to wake up and realise that these are the wrong people to turn to for help with this. Institutions, cultures and individuals gravitate toward their own self-interest. The patient community needs to be smart enough to understand the folly of asking people and institutions with a conflict of interest to become saints. It needs to stop asking them to ignore their own self-interest in order to behave in a way that people don't behave.
Let medical boards do what medical boards do, but create checks and balances. Create State Patients Boards and Community Patient Agencies to represent patients so that patients have a dog in this fight.
The rock bottom foundation of patient safety is criminal law, but no one enforces it in medicine.
Privately I shared with them what I discovered about them. Naively I thought they would want to know. Live and learn. The Ohio State Medical Board now stonewalls me. They won't respond either to email or phone calls from me. They won't release to me information that they are required to make public and they won't answer my questions. If their real concern was protecting patients, would they behave this way?
Since they will not use the information to protect patients, I published it here in the hope that someone else will.