An Rx for Health Care: Openness Access Sought to Doctors' Histories, Errors
The Denver Post
October 6, 2002
Section: NEWS DESK , Page: A-01
By Tom McGhee, Denver Post Business Writer
Growing public concern over medical malpractice is driving more states to provide information some doctors would rather keep hidden. But Colorado has taken no steps toward creating "physician profiles" that would tell consumers about doctors' malpractice judgments and settlements, loss of operating privileges or criminal convictions.
The National Institute of Medicine estimates as many as 98,000 Americans die each year as a result of medical errors. Fifteen states have passed laws to give consumers more information about the doctors who treat them. But past efforts in Colorado to lift the veil of secrecy that surrounds physicians foundered on opposition from the medical establishment.
Be Thi Luong's family members wish they had known more about the doctor who operated on her two years ago. Crippling back pain drove the Vietnamese immigrant to an unscheduled surgery. She never left the hospital. Her family claimed neurosurgeon Karl Stecher punctured a major artery, which Stecher denies. Luong, 54, died two days later of a stroke caused by clotted blood.
Today, the surgeon who once wielded a scalpel in four different Denver area hospitals can no longer operate in any of them. He continues to offer non-surgical care. The state Board of Medical Examiners—the chief clearinghouse for information on doctors—knows all the details. But under state law they are confidential unless they lead to board discipline.
Type a doctor's name on the Colorado board's website, and up pops licensing information, phone number, address and whether the board has disciplined the physician. The same kind of Internet search of medical boards in other states yields physician profiles that include malpractice judgments and settlements, criminal convictions, any loss of operating privileges and board discipline.
The medical establishment zealously protects physician privacy, saying too much disclosure could trigger frivolous lawsuits. Consumer advocates, trial lawyers and some legislators want more transparency. "You know more about the used car you buy than you do about the doctor who is going to operate on you," said former Virginia congressman Thomas Bliley. Consumers can't even get information from the federal government.
A National Practitioner Databank used by HMOs and hospitals to screen doctors for liability problems is also closed to consumers. A public version includes no names or other identifying information. Bliley championed a bill to open the data bank in 2000, but the medical lobby killed the proposal, he said. The State Federation of Medical Boards has recommended that its member regulatory boards—including Colorado's—ask lawmakers to open malpractice payments and other records.
Last year, Public Citizen, a watchdog group, ranked Colorado's medical board 17th for taking 4.6 serious disciplinary actions per 1,000 doctors. Arizona takes the most actions at 10.52 per 1,000. The public wants the information, said Dale Austin, the federation's deputy vice president.
Luong's daughter, Thoa Yeung, hasn't heard much of the debate over physician profiling. All she knows is that choosing a doctor when his background is hidden is difficult. An HMO won't advise the patient about the doctor's record, and while court files about malpractice are open, few think to go to a courthouse when they need a doctor, Yeung said. Luong left it to her children and husband to decide whether Stecher should perform the surgery when her own doctor wasn't available, Yeung said.
"We were in this madness where we knew what mom was suffering from and what medical attention was needed. We wanted to give her that right away," Yeung said recently. On the day Luong was wheeled into surgery at Aurora Medical Center, Stecher's record included one $200,000 judgment against him for wrongful death, according to court records.
Stecher called the allegation false. "I watch my patients like a hawk," he said.
In 1996, he sued Swedish Medical Center after the hospital refused to renew his trauma center contract. Swedish administrators cut his privileges because he complained about the hospital's treatment of a patient, Stecher said.
Though that contract was revoked, he continued to have operating privileges elsewhere in the hospital until 2000-after Luong died .A hospital spokeswoman wouldn't discuss Stecher's relationship with Swedish.
A judge dismissed his suit against Swedish on procedural grounds and ordered the case, which included a peer review on the doctor, sealed. Yeung and her family believe her mother's death was a direct consequence of Stecher using the wrong surgical tool.
A jury agreed in July. An Arapahoe County District Court jury ordered Stecher to pay almost $1 million to the family. But that jury didn't know that little more than one year before Luong's death in 2000, another of Stecher's surgeries went awry.
In that case, the patient-Raylene Sanner-lived, though she suffered brain damage. A suit claimed Stecher ruptured the woman's carotid artery during a surgery almost identical to Luong's.
The operation, called anterior cervical dissecting and fusion, reduces pressure on the spine and is used for a variety of conditions, experts said. The procedure is among the most common performed by neurosurgeons, said Richard Fessler, a neurosurgeon at the University of Chicago. Damage to a patient's carotid artery is rare during the operations, he said. But in both Luong's and Sanner's cases, Stecher said, pre-existing conditions caused weakness in the arteries.
Two prior surgeries for thyroid cancer had left thick layers of scar tissue in Luong's neck, he said. When he pulled the gnarled tissue to get it out of the way, the artery on the other side of her neck popped, Stecher said.
"I didn't pull very hard at all, and it was like a fire hydrant in the wound," Stecher said.
Sanner had an arterial condition that made the vessels fragile, Stecher said. In neither woman's case, he said, did he lacerate the artery.
Stecher, 65, agreed to pay Sanner to settle her suit. It was a first for the portly, gray-haired doctor, who has been sued for negligence, malpractice or wrongful death about a dozen times, according to court records.
"In this case, I felt a jury would be very sympathetic and very understanding" of Sanner, said Irving Johnson, the Denver lawyer who has defended Stecher in previous suits, explaining why he settled.
Stecher helped draft legislation that led to caps in the amount that juries can award to malpractice victims in Colorado. Litigation is ruining the practice of medicine, he said.
"Medicine is going down the tubes," Stecher said.
The Colorado Board of Medical Examiners is aware of the Sanner and Luong cases but hasn't taken action, said Susan Miller, board program administrator. A lengthy investigation by medical professionals precedes discipline, she said. Had Luong's family known Stecher's background, Yeung said, they would have asked for another surgeon.
"I would have thought there's got to be something wrong there," she said. From a physician's point of view, Yeung's comment is a good reason to keep the information out of the public record. Even competent doctors get sued-especially those in high-risk practices like Stecher, said Richard Corlin, past president of the American Medical Association in Chicago.
Settlements, even judgments, don't necessarily signal poor care, said Ned Calonge, president of the medical examiners board. Jurors are sympathetic to people who are injured during medical procedures, he said. And in cases where malpractice isn't obvious, most don't have the background needed to decide if a doctor has done all he can to avoid injuring a patient.
Insurance companies frequently settle to avoid the cost of a trial even if the doctor's care was within medical standards, Corlin said. Others think insurers only settle when the evidence points toward negligence. "My guess is insurance companies settle where there is smoke," said Arthur Levin, director of the Center for Medical Consumers in New York City. Copic Insurance Co. won 31 of 32 cases that went to trial in 2001, said George Dikeou, Copic general counsel. In general, the company, which insures most of the state's 9,000 practicing doctors, settles more than 80 percent of cases, he said.
States that post malpractice and other potentially damaging information about doctors urge patients to view it cautiously. So does Levin. "I don't think one judgment or settlement tells you to stay away from a doctor. But if the information is out there, it says maybe you should ask this doctor about it, or maybe you shouldn't go to him. It's a choice," Levin said. In 1996, the Massachusetts Board of Registration and Medicine became the first in the nation to post malpractice history and other details. Had Luong lived in Massachusetts, the family could have found out on the board's website that Stecher had lost trauma center privileges prior to Luong's operation.
"This is not a tool to embarrass or shame or punish doctors," said Nancy Achin Sullivan, the Massachusetts board's executive director. "It's a tool to make sure patients make good decisions. It's like a dating service-it facilitates communication. "The medical community issued dire warnings during the legislative battle to make records in Massachusetts public, Achin Sullivan said. Ambulance-chasing lawyers would use the information to drum up business, malpractice premiums would skyrocket and doctors would flee the state, they argued. None of those things happened, she said, and doctors have accepted the listings as part of doing business in the state.
After the death of his son in Colorado in 1993, Jay Leonard was part of an effort to change state law so judges in civil cases could read a doctor's performance review. The case of 8-year-old Richard Leonard grabbed headlines and focused attention on malpractice. The boy's anesthesiologist was accused of falling asleep during his routine ear operation. The medical community opposed the legislation and it failed. But physicians argued the confidentiality behind peer reviews allows doctors to be honest about their peers without fears of being involved in a lawsuit.
Doctors who worry about being sued are unlikely to change their position on secrecy, Dikeou said. "In the system we function in right now, you correct the problems by suing. What we should do is discuss mistakes openly and the penalties come if they're repeated," he said. Yeung and the rest of Luong's family went to court thinking there was a good chance they would lose and have to pay some hefty legal fees. "This was one thing we could do for her," Yeung said. "It wasn't her time yet."
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