Secret History: Five Tips from the Kansas City Star's Malpractice Investigation
Editor's Note: In a follow-up story today, Alan Bavley reports that he's been threatened with fines by federal health officials over his use of public National Practitioner Data Bank information. Hat tip to ProPublica senior reporter Charles Ornstein, president of the Association of Health Care Journalists, who wrote about the situation.
Antidote's tour of state medical boards nearly ran off the road in Kansas and Missouri because of the lack of public information about medical professionals.
The St. Louis Post-Dispatch investigated how Missouri handles complaints by patients to the medical board and so embarrassed the state that legislators changed state law to make it easier for the Missouri Board of Healing Arts to take action against physicians and to make public more information about doctors.
The one area not covered by the new Missouri law is malpractice. And here is where Alan Bavley at the Kansas City Star found an opening, drove a truck into it and loaded it up with facts for his story: Doctors with histories of alleged malpractice often go undisciplined.
He used the case of Dr. Robert Tenny, a neurosurgeon, to illustrate how state medical board databases can actually mislead the public, by presenting a seemingly clean medical history when, in fact, doctors can have a significant court history of allegedly harming patients. Bavley wrote:
An investigation by The Kansas City Star found that Kansas and Missouri doctors like Tenny with significant histories of alleged malpractice often go undisciplined by the states' licensing boards. And although the two states' boards have access to malpractice claims information from several sources, they don't make it available to the public - unlike the boards in many other states.
Tenny is just one of 21 doctors The Star found who have spotless Kansas and Missouri licenses even after lengthy histories of malpractice cases. Some have been sued over patient deaths and serious injuries. Some allegedly operated on the wrong body parts, made incorrect diagnoses, delivered unnecessary treatment or left surgical materials inside their patients. None of their records shows any kind of discipline by the states' medical licensing boards.
Here are five tips from Bavley's work for reporters who want to investigate their own state boards. There is plenty of work to be done. Some states, like California, have had multiple reporters dig into their board, but other states have never had a thorough investigation.
1. Take your own tour. When writing about state medical board practices, too few reporters look at what other states do. Or, if they do look, they rely on one or two examples from nearby states, as if geography were somehow a factor. Bavley looked at the websites of medical boards in every state to see whether any of them provided malpractice histories.
In 17 states, including California, Colorado, Georgia and New York, patients can go to medical boards' websites to find out about doctors' malpractice histories. But not in Kansas and Missouri. That leaves sifting through court records as the only way to discover a doctor's malpractice litigation history. And because many settlements are confidential, there is no certainty that all of a doctor's malpractice payments could be found.
2. Call the "ambulance chaser" bluff. Whenever malpractice is part of the conversation, doctors and hospitals inevitably bring up the canard that all doctors are sued all the time, that it's a fact of life for physicians who are preyed upon by money-hungry malpractice attorneys. Bavley showed why this defense doesn't wash.
A recent survey by the American Medical Association found that most doctors will be sued for malpractice by the time they retire. But the majority will never face more than one lawsuit. And even when they are sued, doctors generally prevail, studies have found. Doctors who are sued repeatedly and successfully are uncommon. "If you're a doctor with more than two malpractice payments, you're in a rare group," said Russell Aims, spokesman for the Massachusetts Board of Registration in Medicine. Of the 34,000 physicians licensed in the state, fewer than 100 will make more than two payments on malpractice claims over the course of 10 years, he said.
3. Make the data work for you. The National Practitioner Data Bank (NPDB) has frustrated many reporters over the years because the file the Health Resources and Services Administration makes available to the public does not include doctors' names or license numbers. Bavley consulted with former NPDB associate director Bob Oshel to gather the necessary data from the NPDB files and to sync it up with his other reporting. Bavley was able to get access to the data before HRSA took it down earlier this month, but Public Citizen – the country's most tireless advocate for stricter medical oversight – is fighting to bring the database back.
The Star linked Tenny to entries in the Data Bank by comparing its public reports to information about Tenny contained in court filings. The Star found about 200 doctors who have practiced in Kansas or Missouri since 1990 and have had five or more malpractice case payments made on their behalf, without ever being disciplined by the state's board. The number of malpractice claims against the doctors is unclear because individual cases may involve payments from more than one source. Twenty-one of these doctors, including Tenny, have a record of at least 10 malpractice payments and as many as 19. Malpractice payouts for these doctors exceed $65 million. Their malpractice cases involved at least 10 patient deaths; at least 32 other patients sustained serious permanent injury.
4. Find the future. Changes to state medical board practices are often stalled by pronouncements that something has never been done before or that a specific change would have disastrous consequences for doctors and patients. The suggestion that boards post malpractice histories is often met with dire predictions about doctors never wanting to settle cases for fear the payment information make them look bad. Bavley looked into what happened when North Carolina started posting malpractice payments and found that the sky had not fallen.
After years of study and legislative action, the North Carolina Medical Board started posting malpractice payment information about the doctors it licenses on its website in December 2009. A television news report on the postings caused a surge in web traffic. "There has been a steady drumbeat from the public and the press for more information. This is the board's reaction to what the public expected," board spokeswoman Jean Fisher Brinkley said. The board doesn't report the dollar amounts of payments, nor does it list payments of less than $75,000. Some doctors were concerned that nuisance lawsuits settled for relatively small amounts would appear on their records. "We had people boldly predict no one would want to settle a case again because they wouldn't want it to show up on their record," Brinkley said. "As far as we can see, it's business as usual."
5. Ask tough questions of the patients, too. It's easy to portray patients and their families as pure-hearted victims maimed by devil-horned doctors with blood dripping from their scalpels. How many times have we seen a photo of a family member looking friendly but forlorn and holding the photo of a deceased loved one? I have used those photos with my stories, and the Kansas City Star did, too. The truth is often more complicated, and Bavley gets that.
In the Tenny case that is the focus of Bavley's story, Maribeth Chase died following a surgery, and her son, Dr. John Chase, took the lead on finding out what happened. Bavley asked Chase whether he had been sued for malpractice and how he felt about doctors having their case histories listed for everyone to see. Chase acknowledged that malpractice payments don't always mean that a doctor has done something wrong.
Chase said he has never been sued for malpractice, but he worries about it with every patient he sees. And he believes insurance companies may settle malpractice lawsuits against doctors' wishes just to make cases go away. "There can be a payout where there isn't negligence," he said. "But again, where there's smoke, there's fire. It's (a medical board's) job to put the whole picture together.