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Club Med; how the medical fraternity keeps the government from exposing the skeletons in doctors' closets.

Club Med

In 1978, Connie Fay Blackstone, a married Ohio woman in her mid-twenties, found herself severely depressed after the death of her mother. She turned to Dr. Leo Nierras, a psychiatrist, for help. But Nierras was a little too solicitous. During a session with Blackstone, the doctor exposed himself to her and told her, as he masturbated, that he could be both her doctor and her lover. Then he fondled and pinched the woman's breast. Nierras--earlier accused of sexually harassing his former receptionist--was convicted in 1980 of attempted sexual battery. He surrendered his license upon entering prison.

Released after serving three months, Nierras hoped to practice medicine elsewhere, but with sexual battery on his record, his chances looked slim. So when he applied for a temporary license in Missouri, Nierras lied, denying that he'd ever been convicted of a crime. The state issued the license, but the medical board eventually caught on and canceled it. Nierras then practiced psychiatry in the Philippines for two years before returning to the States, where he got lucky again with the licensing board in Pennsylvania. He now serves as a supervisor of psychiatrists at Warren State Hospital.

CBS's "60 Minutes" tells a similar story. A few years before Roe v. Wade, Barbara Seitz, a dancer in Cleveland, wanted an illegal abortion. So she went to see Vilis Kruze, a local doctor, who administered various drugs and implanted an IUD coil for $100. The result was a bloody, botched abortion. Seitz committed suicide and Kruze was jailed, eventually serving time in the Lima State Hospital for the Criminally Insane. After his release, Kruze moved to Hawaii, where Kaiser Permanente, without investigating his past, hired him as a pediatrician. A young couple came to him to treat their four-month-old son, who'd come down with a fever. Kruze misdiagnosed the illness, which turned out to be meningitis; the delayed diagnosis permanently brain-damaged the boy. After this episode, Kruze moved to California. There, he was murdered by the brother of a woman who overdosed on drugs that Kruze gave her.

Of course, monsters like Kruze are rare. But between the Kruzes and the Marcus Welbys, there's a surprising amount of room for state-hopping quacks, each of whom theoretically has up to 50 chances to get his act together. One California surgeon, whose license was revoked when his gross negligence led to a patient's death, managed to get credentialed in Michigan. When that second license was revoked after some trouble there, he took up practice in New York City. Another doctor got licensed in Wyoming while under investigation in Michigan. Although he was eventually forced to surrender his Michigan license, Wyoming made no such demands. Soon thereafter, a patient under his care died; only then did Wyoming bar him as well. In yet another case, a Louisiana doctor was accused of sexual molestation by several patients. When investigators looked into his past, they learned he'd been denied full privileges at the Illinois hospital where he used to work because of similar complaints.

Starting to wonder if you should check up on your doctor's background? Nice idea, but good luck. In 1986, Congress tried to stop shady doctors from wiping the slate clean every time they changed their addresses. It created the National Practitioner Data Bank, a computerized storehouse of transgressions by all the nation's doctors. The idea was to make accessible violations otherwise sealed up within the medical community's brotherhood of silence. But four and a half years later, you still can't use the federally funded Data Bank to find out if your doctor has skeletons in his closet--unless you're a member of the brotherhood yourself. Indeed, any attempt by Joe Public to use the bank will draw him a stiff $10,000 fine.

Most of the blame for the public shut-out lies with the American Medical Association (AMA), which has spearheaded a relentless assault on the Data Bank. As one architect of the Data Bank legislation put it, the mighty AMA "opposed this thing every step of the way." And when the AMA talks, congressmen listen: The AMA is America's second most generous PAC. In 1990, the organization contributed money to the campaigns of 478 senators and representatives. Seventy-seven members of Congress, including Speaker Tom Foley and Republican Whip Newt Gingrich, received gifts of $10,000 or more.

One of the few who got nothing from the AMA last year was Ron Wyden, an Oregon Democrat who serves on the House Health and Environment Subcommittee and is a longtime advocate of medical reform. In the early eighties, concerned that peer-review panels were too weak, Wyden explored the idea of imposing some federal check upon the medical profession. In the course of his investigations, he stumbled across the state-hopping problem. According to the journal Medical Economics, some 25 to 30 physicians were doing it each month. Wyden was particularly struck by a dodge used in his home district, which bordered Washington state. "They could go across the border into Washington to practice, and they wouldn't even have to move," he says.

In response to concerns like Wyden's, Congress passed the 1986 Health Care Quality Improvement Act, which strengthened peer review and set up the Data Bank. Administered by the Department of Health and Human Services (HHS), the National Practitioner Data Bank contains the names of all licensed doctors and dentists in the U.S. Whenever a doctor has his license suspended or revoked, loses or settles out of court in a malpractice suit, or is otherwise disciplined by a hospital or state board, that information enters the repository. Hospitals then query the bank, both to keep tabs on their regular staff (they must do so every two years) and to find out the histories of prospective employees. State licensing boards, medical societies, nursing homes, and health maintenance organizations may also use the bank.

Wyden denies that the Data Bank legislation originally called for public access. And while he's right in saying that no written draft of the bill ever included such a provision, public access was certainly part of the initial concept. "Wyden originally wanted it to be open," says Charles Inlander, president of the Allentown, Pennsylvania-based People's Medical Society. "But the AMA was the number-two PAC. Wyden knew the only way to get it passed was to keep out the public access provision."

Peter Budetti, a professor of health law and policy at George Washington University and former counsel to the Health and Environment Subcommittee, explains why the legislators cut a deal. Given the resistance of the AMA, Congress doubted the organization would let even the government see any doctors' records. "There wouldn't have been anything in the Data Bank if it were public," he says. "So there was a tradeoff." In return for the AMA's cooperation, public access was quashed.

Still, the bank in its diluted form is better than no bank at all. "There is a great benefit in the legislation right now because it puts the heat on medical providers," says Wyden. "If hospitals don't check the Data Bank and there's a problem--if they credential a physician with a serious record of violations--in a lawsuit, they're in deep trouble." But advocacy groups such as the People's Medical Society and Ralph Nader's Public Citizen contend that public access is the sine qua non of a useful Data Bank. Right now, patients must still rely on hospitals to monitor their physicians for them. And there remains no check whatsoever on doctors in private practice.

The AMA claims the average patient won't know how to interpret a black mark beside a doctor's name, so any notation will forever brand a physician as incompetent. "If a physician has his credentials suspended for failing to complete some chartwork, that goes on his record," says James Todd, senior deputy executive vice president of the AMA and a member of the Data Bank's executive committee. "This information will not be understood by the consumer."

That fear completely ignores the real issue: the effect on the patient. After all, patients maimed by incompetent doctors will suffer far more than doctors who lose business because of spotty records. Besides, the average citizen can distinguish between grave and minor offenses.

"If you see that your physician got disciplined for turning in his Medicare forms late, you're still going to go to him," says Inlander. "If you see he's settled 28 lawsuits in a period of two years, you're going to want to find out more."

Malpractice assurance

Once Congress passed the legislation creating the Data Bank, many thought it would be functioning within a matter of months. Those hopes were quickly dashed. "Congress appropriated no money until the fall of 1988," says Daniel Cowell, director of quality assurance at HHS. "I don't know why. It had been my naive assumption that when Congress passes a law, the money goes along with it."

Part of the delay was caused by the budget crunch: As federal spending straits tightened, the Data Bank, with few advocates in Congress, was squeezed. Noticeably, the AMA failed to throw its weight behind the effort. "We did talk to some congressmen to make sure the money was there, but there was no all-out push when it came to getting funds," says Todd of the AMA. "We had mixed emotions about it from day one." Not too mixed: The AMA lobbied key appropriations committee members to withhold Data Bank funds.

Besides the matter of funding, several other kinks had to be worked out before the bank was up and running. The AMA, which once planned to run the bank itself, pulled out. Then came a lengthy bidding process, as HHS looked for another organization to man the system. After finally awarding the contract to the Unisys Corporation, HHS next had to haggle with OMB over guidelines for running the Data Bank.

At long last, the Data Bank opened last September 1. Requests and information immediately poured in. According to Lynn Trible, a spokeswoman at HHS, the bank recorded almost 9,000 malpractice payments and "adverse action reports" in the first five months of operation. Meanwhile, hospitals have made 285,000 queries about employees and candidates. Thirteen thousand new ones roll in every week.

This enormous volume has surprised everyone involved. Because Unisys initially understaffed the project, there is a huge backlog now. Rather than processing requests within a few days, it is taking a whole month to answer them. Both sides are frustrated. "A month behind is really significant," says Ingrid van Tuinen, a staff researcher at Public Citizen. "It sounds like a total disaster." Todd at the AMA gripes that the backlog has delayed some physicians in acquiring their credentials at new hospitals.

A pound of prevention

Of course, delayed credentials aren't the only reason that the AMA is now busy trying to soften the Data Bank's rules. In a concession to the association, Congress included in the 1986 legislation a provision calling for a review of the bank after no more than two years to weigh various changes in the system. The AMA has been pushing to impose a $30,000 threshold for reporting malpractice settlements and judgments. Under that $30,000 figure, all claims will be dismissed as "nuisance suits" and ignored. It argues that a money-hungry patient can sue a perfectly competent doctor, and the doctor, rather than slug it out in court, will settle for a small sum. Small settlements, it says, should not discredit those doctors. In its own records of doctors' performances, predictably, the AMA does not list malpractice suits.

The AMA hopes to doctor Data Bank information in other ways as well. At its December meeting, it recommended that the government allow physicians to attach personal explanations to the official accounts of their misdeeds; to leave out certain cases in which doctors have their hospital privileges suspended; and to empty the bank of all information except license revocations every five years. "If nothing has happened to a physician in five years, then why should that mark continue to be there?" asks Todd. The reason the AMA chose a span of five years, Todd says, was "arbitrary."

Meanwhile, as a recent lawsuit against D.C. obstetrician Kenneth Blank and the Columbia Hospital for Women suggests, doctors are already finding Data Bank loopholes they can leap through. In 1989, a Maryland woman charged that Blank's negligence during the birth of her son damaged his brain and eventually killed him. Before the case went to trial, the doctor's lawyer offered the following deal: He'd settle for $485,000--but only if the doctor's name was dropped from the suit (leaving the hospital the sole defendant). In other words, the woman's lawyer charged, Blank would settle only if his name wasn't on documents that might wind up in the Data Bank.

Frustrated, the mother intended to report Blank to the Data Bank herself. But before Blank's lawyer would mail the settlement check, he asked her to sign one last agreement--which specifically forbade her from reporting her doctor to the bank. After the woman's lawyer went public, the offending clause was deleted.

Of course, just having the freedom to turn a doctor in doesn't mean the Data Bank will listen. Lauren Lubow, case control officer of the Ohio State Medical Board, says that when she called Data Bank staff members to tell them about certain incompetent doctors she'd learned of, they said they weren't interested.

Public Citizen's Lynn Soffer, who serves on the Data Bank's executive committee, predicts that it will take several years before the bank has any clout. But real clout won't come from time alone. It will come when Congress opens the Data Bank up to the average consumer. "We get letters every week from citizens who ask why they can't have access to that information," says Cowell. Both Inlander and Sidney Wolfe, the head of Public Citizen's Health Research Group, say Wyden has promised to introduce public access legislation soon. Wyden himself will say only that he wants to see the Data Bank running cleanly under its current regulations before modifying it. He wants time, he says, to work out the software glitches.

Software glitches? "I think that mechanical stuff is a lot of hooey," says Inlander. "If everyone's driver's license can be on file so that any cop in any part of the country can go to his car and call it up, then they can do this, too." Indeed, it's time to stop screwing around with what could be a life-saving public resource.

Still, the Data Bank won't shine a light into every grimy corner of the medical profession. Just last year at a Virginia hospital, for example, an alcoholic surgeon was regularly drinking on the job. His peers knew about it, even a representative of the local medical board knew about it, but no one reported it. Finally, his colleagues privately forced the man to get treatment. The man's patients, it seems, had no need to know.

Overcoming the medical profession's impulse to protect its own will require deeper reform than any computer system could possibly achieve. But making the Data Bank accessible to us all is one obvious way to start sorting out the Kruzes from the Welbys. Until they come up with a way to wipe out the disease, the AMA and its congressional co-conspirators should at least make it possible for the rest of us to battle the symptoms.
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Copyright 1991, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Greenberg, David
Publication:Washington Monthly
Date:May 1, 1991
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