Keep Them From Harm and Injustice?
By Robert Van Boven Texas Medicine October 2018

The April 2018 issue of Texas Medicine highlights a significant problem that imperils quality of care and safety in hospitals: a culture of silence.

Nearly 20 years ago, the Institute of Medicine (IOM) estimated that 50,000 to 100,000 patients die annually from hospital errors. Nearly two decades later, despite research, legislation, and numerous initiatives, patient deaths from hospital mistakes appear to have doubled to estimates of 250,000 — a death toll six-fold greater than that of opioid overdoses. Transparency of errors, integral to the prevention of errors, remains a platitude rather than standard practice: “Despite the universal endorsement of disclosing adverse events, studies still suggest disclosure of errors is not ubiquitous, occurring in only approximately 30 percent of cases.”

The IOM report cited the U.S. medical liability system as one possible “impediment to systematic efforts to uncover and learn from errors.” But the Public Safety and Quality Improvement Act, enacted in response to the IOM report and providing new legal protections for reporting adverse events, has not reduced the fear of reprisals nor improved upon the dearth of doctors reporting hospital errors. Furthermore, caps on damages, a common tort reform, have not been shown to increase reporting of adverse events nor to reduce errors. 

Notably, since tort reform in Texas in 2003, there has been a disproportionate increase in Texas Medical Board (TMB) investigations, fines, and discipline against physicians compared with the number of complaints received. But as the IOM reported, “the majority of medical errors do not result from individual recklessness or the actions of a particular group — this is not a ‘bad apple’ problem. More commonly, errors are caused by faulty systems, processes, and conditions that lead people to make mistakes or fail to prevent them.” 

Alas, as in the case of misguided “cures” for social or health ailments (e.g. alcohol prohibition and Thalidomide), well-intended but ineffective cures can be long-lived. Scapegoating can prevail in lieu of investment in education and systematic scrutiny of the factors and complexities of modern health care. 

Consequently, fear remains a major barrier to transparency of hospital errors. Reporting adverse events may evoke the vitriol of hospital investors, its governing body, administration, or staff/employees. “Shooting the messenger,” i.e. retaliating against physicians for speaking out about unsafe activities or errors at hospitals, often lingers as the expedient but ineffectual nostrum to mitigate medical liability and/or hospital reputational harm from preventable patient deaths.   

An informal survey of Texas Medical Association members and attorneys representing physicians has noted concerns of bad-faith reporting that can cause the TMB to inadvertently serve as a proxy retaliatory device, as well as prosecutorial efforts that may infringe on physicians’ rights. 

Concerns of discretionary abuse of policies and procedures have also been raised. For example:

  1. The TMB has a target-based performance measure or quota, established by the legislature, to impose disciplinary actions in at least 12 percent of complaints against physicians.
  2. The TMB self-initiates nearly one in five of all complaints against physicians; this carries the risk of confirmation bias.
  3. Only 1 percent of physicians prevail in State Office of Administrative Hearings (SOAH) hearings in which they contest TMB claims. Undue influence of TMB on this quasi-judicial process is at issue.
  4. Since 2003, the number of state licensure reports against physicians to the National Practitioner Data Bank (NPDB) has risen sharply; the number of reports made in 2017 (n=478) nearly tripled those for 2003 (n=179).
  5. The TMB reports its dismissal of cases based on SOAH adjudication/exoneration as a “revision” of a temporary sanction for permanent posting on the NPDB. This corrupts the repository’s purpose. Congress created the NPDB to alert licensing agencies, hospitals, and insurance carriers to practitioners who have a history of verified unsafe or unprofessional actions/inactions, not dismissed allegations.
  6. Even if a formal complaint is “dismissed as baseless, unfounded, or not supported by sufficient evidence that a violation occurred, or no action was taken against the physician’s license as a result of the complaint,” the TMB does not remove all records posted on a physician’s file until five years after dismissal of TMB claims. 

 

How might the TMB actually fulfill its mission to improve patient safety and quality of care? Emphasize education on root causes of patient harm rather than “litigation.” The TMB’s stated goal is to “Protect the Public with Investigations, Discipline and Education.” But for FY 2016, only $523,000 (2 percent of its total budget) was spent on education compared with $11,931,000 (50 percent of its total budget) spent on “enforcement”. 

How can this state agency be kept from overreaching its authority or infringing on the rights of physicians? Through active oversight and independent accounting — the same checks of power required to keep our government just. Currently, complaints against the TMB are vetted and monitored by the TMB. This chasm in culpability could be filled by the Office of Inspector General in the Texas Health & Human Services Commission. With the TMB’s annual surplus collections of over $12.5 million, the cost of a more just system is affordable, and its denial, inexcusable.   

Physicians should reach out to legislators/Texas Sunset Commission members to preserve their right to speak out, advocate for, and uphold their Hippocratic duty to their patients, “to keep them from harm and injustice.”

Robert Van Boven, MD, DDS, is a board-certified neurologist, past American Academy of Neurology Palatucci Fellow, and previous vice president of the Minnesota Society of Neurological Sciences. He has experience in state and federal efforts to enhance accountability and performance in government health care agencies. He has testified before Congress on improving legal safeguards against reprisals for reporting gross waste and mismanagement to the disservice of patients.

References

1. www.texmed.org/speakingup/

2. Kohn LT, Corrigan JM, Donaldson MS, editors. To err is human: building a safer health system. Washington, DC: National Academy Press, Institute of Medicine; 1999.

3. Makary MA, Daniel M. Medical error-the third leading cause of death in the U.S., BMJ. 2016 May 3;353:i2139

4. https://www.cdc.gov/media/releases/2018/p0329-drug-overdose-deaths.html

5. “You Can’t Understand Something You Hide: Transparency As A Path To Improve Patient Safety, " Health Affairs Blog, June 22, 2015; DOI: 10.1377/hblog20150622.048711. https://www.healthaffairs.org/do/10.1377/hblog20150622.048711/full/.

6. Wu, A.W. Disclosure of adverse events in the United States and Canada: an update, and a proposed framework for improvement. J. Public Health Res. 2:e32, 2013.

7. http://www.nationalacademies.org/hmd/~/media/Files/Report%20Files/1999/To-Err-is-Human/To%20Err%20is%20Human%201999%20%20report%20brief.pdf

8. A Rand survey of over 1,000 hospitals, before and four years after enactment of PSQIA, shows that 60 percent of those surveyed cite fear of reprisals as a basis for not reporting adverse events, and physicians are the least likely make reports: in 85 percent of hospitals across the nation, physicians make no reports (or only a few). https://www.rand.org/content/dam/rand/pubs/working_papers/2010/RAND_WR752.pdf        

9. See discussion in Kachalia A, Mello, MM. Legal & Policy Interventions to Improve Patient Safety. Circulation. 133: 661-671. 2016.

10. When comparing the period before tort reform (1996 to 2002) with the period after tort reform (2004 to 2010), TMB complaints only increased 13 percent; but investigations opened increased 33 percent, disciplinary actions increased 96 percent, license revocations or surrenders increased 47 percent, and financial penalties increased 367 percent. Stewart et al. Tort Reform Is Associated with More Medical Board Complaints and Disciplinary Actions. J Am Coll Surg 2012;214:567–573, 2012. 

11. http://www.nationalacademies.org/hmd/~/media/Files/Report%20Files/1999/To-Err-is-Human/To%20Err%20is%20Human%201999%20%20report%20brief.pdf

12. https://www.theatlantic.com/health/archive/2017/02/when-evidence-says-no-but-doctors-say-yes/517368/

13. Wu, A.W. et al. Disclosure of adverse events in the United States and Canada: an update, and a proposed framework for improvement. Journal of Public Health Research 2013; Vol 2:e32. Also see https://www.rand.org/content/dam/rand/pubs/working_papers/2010/RAND_WR752.pdf           

14. See amicus briefs by the Texas Medical Association and Association of American Physicians and Surgeons for CAUSE NO. D-1-GN-15-003129, District Court Travis County, 98th Judicial District.

15. Summarized in Nov. 16, 2016, letter from TMA’s general counsel to Ken Levine, Director of Texas Sunset Advisory Commission.

16. Tex. Occ. Code, Sec. 160.013 mandates expungement of bad-faith reporting from a licensee’s record.

17. TMB Self Evaluation Report, August 2015. Exhibit 2: Key Performance Measures, at 6.

18. For FY '04 to FY '14, 18 percent of all TMB complaints were self-initiated by the Agency. Source: Yvette Yarbrough, assistant general counsel for the TMB. Personal communication and presentation 10/18/2016.

19. TMB disclosure through Public Information Act. Nine of 843 cases contested at SOAH result in dismissal of allegations against physicians from 2007-2016.

20. See https://www.texastribune.org/2018/05/18/little-known-state-agency-causes-controversy-chief-judge-forces-resign/; https://www.austinchronicle.com/news/2018-06-15/texas-medical-board-defends-itself/; https://www.austinchronicle.com/news/2018-08-10/more-trouble-for-medical-board-and-soah/; https://www.mysanantonio.com/opinion/commentary/article/Why-is-the-governor-dropping-the-ball-13142180.php

21. Source: https://www.npdb.hrsa.gov/analysistool/ licensure adverse actions/reinstatements for M.D.s and D.O.s.

22. https://www.npdb.hrsa.gov/topNavigation/aboutUs.jsp

23. Title 22. Tex. Adm. Code 173.4(b). http://www.tmb.state.tx.us/idl/3E399486-3B51-843A-AAD2-E67B31810FB0

24. TMB FY 2018-2019 Legislative Appropriations Request at page 10.

25. Tex. Occ. Code Sec. 154(a)(6) and 154(b)(1).

26. The March 2018 Sunset Advisory Commission Staff Report estimates the TMB will annually collect and contribute about $12.5 million to the state in excess of its annual budget cost of $17.4 million. Texas Medical Board Sunset Staff Report March 2018 at page 50. 

27. Translation from the Greek by Ludwig Edelstein. From the Hippocratic Oath: Text, Translation, and Interpretation, by Ludwig Edelstein. Baltimore: Johns Hopkins Press, 1943.

 

Tex Med. 2018;114(10):4-5
October 2018 Texas Medicine Contents 
Texas Medicine Main Page  

 

Last Updated On

October 01, 2018

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