Medical Board says lack of money, authority ties hands and may attract subpar physicians to state

After the Wisconsin Medical Examining Board suspended Dr. Frank Salvi in 2009 for fondling four female patients, the Madison-area doctor won a circuit court ruling throwing out the sanction.

Then, the medical board won an appeals court decision restoring it. Salvi failed to get the state Supreme Court to take the case.

But he succeeded in making the medical board spend about $200,000 to fight him, said Dr. Sheldon Wasserman, board chairman.

The board, which has a $1.9 million annual budget and gets about 500 complaints against doctors each year, can't afford to do that very often, Wasserman said.

"We're using up our resources fighting their resources," he said.

The budget for Wisconsin's medical board appears to be smaller than for boards in other states. It's one of several factors that limit the board, its leaders say.

The board has supported bills to remove other limitations, such as a lack of authority to launch investigations on its own or to perform criminal background checks on doctors applying for licenses.

But the state Legislature didn't pass the measures. "I think that would expand their authority too far," said state Sen. Leah Vukmir, R-Wauwatosa, chairwoman of the Senate Committee on Health and Human Services, who opposed both moves.

Other changes have been approved, such as requiring doctors to report wrongdoing by others. That started in 2009.

The board doesn't have independent authority. As part of the state Department of Safety and Professional Services, it works within departmental rules as well as state statutes and Supreme Court rulings, said Gene Musser, a board member and previous chairman.

The department, for example, hires and fires board staff.

Despite the limitations, the medical board and the department protect the public by ensuring that doctors provide safe and competent care, said Greg Gasper, the department's executive assistant. Reforms have led to a 36 percent reduction in pending cases over the past two years, Gasper said.

"Better management has resulted in more disciplinary action and reduced pending caseloads," he said.

Musser acknowledged that a major reason Wisconsin ranks low in serious discipline against doctors is the board's preference for reprimands instead of more serious penalties in many cases.

Even if the board had more money or more power, its frequent use of reprimands likely would continue because the board generally values rehabilitation over harsh discipline, he said.

"Our wings are clipped"

In 2009, amid criticism that the medical board took too long to discipline doctors, Wisconsin raised the biennial license fee for doctors from $106 to $141 — an amount still lower than in most states.

That paid for more investigators and increased the board's budget to $1.8 million that year. This year, it's $1.9 million.

But while the board had a team of 10.5 attorneys, paralegals and investigators in 2010, a reorganization reduced the team to 7.7 positions, officials said.

"Our wings are clipped again," Wasserman said.

The board's total staff is about 14 positions, department officials said, but some of those people also work for other boards.

Wasserman said the board's limited resources mean the board must be cautious in taking a hard line against doctors such as Salvi, who worked at UW Hospital until resigning in 2007.

The result is more plea bargaining for lesser forms of discipline, Wasserman said.

Salvi, of Cottage Grove, denied the charges against him. His license remains suspended and he is looking for work, said his attorney, Lester Pines. Salvi declined to comment.

More resources in other states

No state-by-state comparison of medical board budgets is available, but medical boards in some states are better funded than in Wisconsin.

The State Medical Board of Ohio has a $9.1 million budget and the equivalent of 79 full-time staff. Though Ohio has twice as many doctors as Wisconsin, its medical board budget is nearly five times greater.

Ohio was among the top three states for serious discipline against doctors in Public Citizen reports the past two years.

The medical board in Ohio is a separate agency, not part of a state department, said Joan Wehrle, the board's outreach manager.

"It makes a huge difference," Wehrle said. "You set the priorities."

Ohio's board developed guidelines that suggest minimum and maximum penalties for various violations. Wisconsin's board has no such guidelines.

From 2009 to 2011, the Ohio board revoked the licenses of 118 doctors and issued 20 reprimands. Wisconsin's board issued five revocations and 115 reprimands during that time.

"If there's patient harm, the board will usually issue a stronger sanction than a reprimand," Wehrle said.

The State Journal contacted medical boards in four states with populations and doctor numbers similar to Wisconsin's.

Their budgets: Colorado, $2.9 million; Minnesota, $5.3 million; Missouri, $2.6 million; and Tennessee, $2 million.

Legislature says no 

Wisconsin statutes say the medical board should investigate complaints of unprofessional conduct against doctors, but they don't say the board can look into suspected wrongdoing on its own.

A 2003 bill to change some medical board operations, including allowing proactive investigations, wasn't approved by the state Legislature. The Federation of State Medical Boards doesn't track how many states do such investigations.

Musser said proactive probes could lead to more discipline.

"I believe there are physicians around the state doing stuff they shouldn't be doing that we don't hear about because it doesn't get reported to us," he said.

Likewise, requiring background checks when doctors apply for licenses could identify more doctors with criminal pasts, Musser said.

Medical boards in 36 states require background checks, according to the Federation of State Medical Boards. The Wisconsin board's attempt to do so last year was overruled by the Legislature.

Rep. Erik Severson, R-Star Prairie, co-sponsored the bill that prevented the board from doing routine criminal background checks.

Severson, a doctor, said requiring fingerprints for the background checks would be costly.

"They'd be adding an extra burden on physicians who want to come here to Wisconsin at a time when we have a physician shortage," he said. "It seems like an overreach on government's part to solve a problem that doesn't exist."

But by not doing the checks, Wisconsin could eventually attract doctors with criminal records, Musser said.

"As more states do that, we may become sort of a magnet," he said.

The Legislature approved a "duty to report" requirement in 2009. Doctors must report other doctors who engage in unprofessional conduct or endanger patients.

Wasserman said the requirement has led to more complaints and discipline, though a board spokeswoman said no data are available on the impact of the requirement.

More changes

Last year, the board revised the state's administrative rule defining unprofessional conduct for doctors. The changes are subject to approval this year by the Legislature and the governor.

The board specified wrong-site surgery as unprofessional conduct, for example. It also listed specific crimes, such as sexual assault and child enticement. That should bring quicker action in such cases, Wasserman said.

But some proposed changes weren't adopted by the board, largely because they were opposed by the Wisconsin Medical Society and the Wisconsin Hospital Association.

One would have required doctors to tell patients about alternative diagnoses and treatments. Another would have made doctors tell the board about actions taken against their hospital privileges.

"That was a battle I could not win," said Wasserman, a former Democratic state Assembly member from Milwaukee.

Wasserman and Musser said they hope the board will make other changes. One is to require more continuing education when doctors renew their licenses every two years. Currently, 30 hours are required.

They also want doctors to complete three years of training after medical school before qualifying for a license in Wisconsin.

Most states require one year for graduates of U.S. medical schools but two or three years for graduates of foreign schools. Wisconsin requires one year for both.

"We are basically the dumping ground for a lot of bad physicians who want to get their foot in the American medical system," Wasserman said.

Additional Information:

How the Wisconsin Medical Examining Board handles complaints about doctors: The state Department of Safety and Professional Services receives about 500 complaints against Wisconsin doctors each year.

Live chat replay: Reporter David Wahlberg answers questions about the Doctor Discipline investigation: Reporter David Wahlberg discusses his Doctor Discipline series, which revealed that serious mistakes don't always result in serious discipline.

This story originally ran in The Wisconsin State Journal on January 29, 2013.

Photo Credit: M.P. King/State Journal