A recent WBZ television (I Team) investigation of the Massachusetts Board of Registration in Medicine, which has the mandate of licensing, investigating and disciplining physicians, found that of 654 doctors who settled malpractice claims only 6 received any sort of discipline. The investigation revealed 14 doctors who had settled 3 or more malpractice claims and none were disciplined. The executive director of the Board of Registration in Medicine, a physician, defended the Board’s actions saying that the Board relies “primarily on complaints from patients, hospitals and law enforcement-not malpractice claims.”
What is disturbing about this is that perhaps the most crucial information concerning the adequacy of care provided by some physicians is being completely ignored by the Board of Registration in Medicine. When a medical negligence action is filed with the courts, a Medical Malpractice Tribunal is scheduled. The Tribunal is comprised of a judge, an attorney, and a physician, typically of the same specialty as the defendant physician. The patient is required to provide a written “Offer of Proof” to the Court, the members of the Tribunal, opposing counsel and the Massachusetts Board of Registration in Medicine. The “Offer of Proof” contains pertinent medical records concerning the defendant doctor’s medical treatment and a report from a medical specialist who has reviewed the medical records and has concluded that the treatment of the defendant physician did not meet the standard of care required and that the departure from the standard of care injured the patient. The Tribunal is conducted in open court. The attorneys for the defendant doctor and the patient argue their case. The Tribunal makes a ruling. If the Tribunal finds that the case is an “unfortunate medical result” but not malpractice, the patient must either post bond or the case is dismissed. If the Tribunal finds for the patient, the case can proceed to trial without the posting of a bond, the jury never learning of the findings of the Tribunal. The Board of Registration in Medicine is notified of the findings of the Tribunal.
The statement of the executive director that he relies “primarily on complaints from patients, hospitals and law enforcement-not malpractice claims” strongly suggests that information critical to patient safety is being overlooked. Most patients do not know what the Board of Registration in Medicine is, let alone know that they can file a complaint there. “Law enforcement” does not investigate physicians unless there are violations of criminal laws such as the unlawful prescription or administration of medications as in the Michael Jackson case. Do you suppose that there might be some reluctance on the part of hospitals to report their own physicians? In an extreme example, nurses in Texas were charged criminally for doing just that. They reported a physician who endangered patients and they were charged with the crime of “misusing official information”. After lengthy legal proceedings and a trial, they were ultimately found not guilty.
I am not suggesting that the vast majority of physicians do not provide competent care. They do. The fact remains however that patients die each day from medical negligence. What I am questioning is “Who is protecting the patients?” from those who are incompetent. It is not “law enforcement”. It is not their job and they do not have the training to determine whether treatment met the standard of care. It is not the patient who does not know where to turn when the unthinkable happens. It apparently is not the Massachusetts Board of Registration in Medicine either.
The job has become that of our juries. Their job is not easy but must be done since no one else can or will do it. They are sworn to listen to the testimony of experts and other witnesses during a trial and to follow the law as the judge explains it to them. It is their duty to uphold the law in the name of justice and for the safety of all patients, not just the patient who is unfortunate enough to be the “plaintiff” in the case they will decide. Let’s hope for all of our sakes that they are up to the challenge.