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States eye tougher stance on doctor discipline, competency testing

The climate in some states is adversarial; in others, consensus bills are on the table.

By Andis Robeznieks, AMNews staff. March 3, 2003. Additional information

Lawmakers across the country are considering a variety of bills aimed at physician issues this year, and several of them, if passed, are likely to mean increased scrutiny for doctors in those states.

Medical societies in Massachusetts, New Jersey, Texas, Oregon and Virginia are confronting bills on medical error reporting, public disclosure of disciplinary actions and physician competency testing.

"The trial lawyers are out in full force -- as are the doctors," said Larry Lewis, a legislative aide for New Jersey Assemblyman Herb Conaway, MD, who in 2002 co-sponsored the New Jersey Patient Safety Act, a bill that would shield hospitals' in-house analysis of medical errors from the judicial discovery process.

Out West, Oregon Medical Assn. Director of Government Affairs Scott Gallant said ongoing talks are aimed at creating a state agency to oversee collection of medical error data.

"It's essentially a semipublic private corporation for a voluntary, nonpunitive system that provides for the sharing and reporting of [medical error] information," he said, adding that participants in the talks included representatives from medical groups, education and health care institutions, government, consumer groups and insurance companies.

In Texas, debate is expected to be heated as bills dealing with competency testing, funding for the board of medical examiners and adding more nonphysicians to the medical board work their way through the process.

A consumer group called Texas Watch wants complaint and error information to be publicly available, and it also wants to make nonphysician members a majority on the state medical board. "We have not seen a good-faith effort to rein in bad doctors from the medical industry itself," said the group's executive director, Dan Lambe. "The doctors have been unable to police their own."

To help push its legislative agenda, Texas Watch has organized a network of families whose members have been injured by medical errors.

Joe Cunningham, MD, who chairs the Texas Medical Assn.'s committee on legislation, doesn't find the group's motives to be altruistic. "Texas Watch is a front funded by the trial lawyers, and their purpose is to fan the flames," the Waco internist said. "To that degree, we don't get along."

But Dr. Cunningham said the TMA and Texas Watch don't have to be adversarial all the time. "Our job is to work for and be in favor of ideas that make the board of medical examiners more effective," he said. "We will endorse any ideas that do that."

Working together

In Virginia, adversaries in the move to reform the state medical board have worked toward a consensus and crafted legislation that is agreeable to both sides.

At first, a familiar pattern was followed: Newspapers reported on medical horror stories and lax disciplinary action by the medical board, the public was outraged, politicians responded, and then physicians responded to the response.

Medical Society of Virginia President Hazle Konerding, MD, said news reports focused on a doctor who "milked the peer-review process for all it's worth." Not surprisingly, peer review became a target in the initial package of proposed reforms.

"It would have gutted peer review in hospitals -- which would not have been good for anyone," said Dr. Konerding, a Richmond dermatologist.

She said the MSV had begun working with legislators last summer and had come up with a bill that would let the medical board discipline doctors over "simple" rather than "gross" negligence (meaning less proof is required for disciplinary action), have the board focus on problems "that harm or could cause harm to patients," and let the board discipline minor offenses via letters of reprimand shielded from legal discovery.

"We think this is going to help us practice good medicine in Virginia -- unfortunately, it came out of a bad situation," Dr. Konerding said of the bill and the bad press that spawned it. She added that doctors would accept a license fee increase if that's what it takes for reforms to work.

Little communication

In Massachusetts, the docket is full of health care-related bills, but politicians and physicians do not appear to be working together on them.

Although state Sen. Richard T. Moore has sponsored 66 such bills, Massachusetts Medical Society spokesman Rick Gulla said the group and the senator had yet to communicate. "When the [legislative] hearings take place, Sen. Moore will hear our viewpoints on the bills," Gulla said.

The MMS legislative committee met Feb. 12, and Gulla said it was formulating official opinions on health care bills now before the Legislature.

He said the panel was against a bill allowing letters of reprimand to be posted on the Internet because doctors do not have the right to appeal letters of reprimand.

Another bill it opposes calls for the medical board to create clinical, ethical and professional development performance standards, as well as standards measuring a doctor's "interpersonal relations with peers, other health care professionals and patients." The board would then judge physicians on how well they met these standards.

Gulla said the committee found this bill to be "unworkable" because it did not define any standards, and it would burden the medical board with a cumbersome and expensive review process.

The panel also thought the bill reflected "flawed logic," Gulla said, because -- every two years -- it would require physicians to prove "they are not a problem."

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Copyright 2003 American Medical Association. All rights reserved.