Reasons for medical license revocations not always clear

10/06/2013 6:35 AM

10/06/2013 6:36 AM

It’s easy to find out if the state has suspended your doctor’s medical license.

But exactly what your doctor did to lead to the suspension and what she or he must do to try to get that license back may not be so clear.

The Kansas State Board of Healing Arts and its actions against the health care professionals it oversees are public information and readily available on its website.

However, nearly 30 state and federal laws make information such as criminal history, drug and alcohol treatment, drug screens and peer review subject to redaction, which means you don’t always get the whole story.

Take the case of a former Wichita chiropractor. The Board of Healing Arts filed a final order revoking his license May 7, saying that it “concludes that (confidential) renders him unable to practice the healing arts with reasonable skill and safety to patients. . .”

The chiropractor’s patients can find out that the state took his license. But the reason why is a bit of a mystery.

The Eagle looked at all actions filed by the board, based in Topeka, so far this year. The board has taken actions of some kind – from public censure and required monitoring to suspension and revocation – against 120 health care professionals. Of the medical doctors, osteopathic doctors, chiropractors, physical therapists and other professionals disciplined in some way, orders against about a third of them contained confidential information, making it difficult, at times, for the public to know what they were accused of doing wrong. In some cases The Eagle reviewed, entire pages are marked "confidential." Others have only a few lines redacted here and there.

Kathleen Selzler Lippert, executive director of the board since 2009, said she understands that the redactions might trouble the public.

“But whether we agree or disagree or are neutral on the subject, we have to follow the law,” Lippert said. “We can’t not follow the law.”

Rep. Jim Ward, a Democrat from Wichita who is ranking minority member on the House Health and Human Services Committee, said there’s a balancing act at play. If the state has revoked a doctor’s medical license, it makes that information available to the public, and the doctor is no longer able to practice. So the risk to the public is low, he said, even if the public doesn’t know all the details.

“I think there should be some level of confidentiality just as you have some level of confidentiality,” Ward said of health care professionals who may be struggling with addiction or other health issues that might affect their practice.

Ward said he sees a difference in cases where the physician still is allowed to practice.

For example, in some board actions, how the state plans to monitor health care physicians who have been disciplined is confidential.

“Should I know at least what things have been set up to avoid the problem from happening again?" Ward asked, wondering if lack of information about monitoring in some cases puts people at risk. “I think that is a legitimate question.”

Public Citizen, a Washington, D.C.-based group that identifies itself as non-partisan, said medical boards should aim to provide as much information as possible.

“We certainly favor transparency regarding board actions against physicians and other care health care providers,” said Michael Carome, a physician and director of Public Citizen’s Health Research Group. “We think that it would be appropriate when somebody’s license is suspended, that the reasons for that should be disclosed so that patients can decide for themselves if that’s a physician they want to see.”

Knowing only that a license was revoked or suspended “really isn’t terribly informative,” especially when a license can be reinstated, he said.

Statutes cited

The Eagle selected about a dozen cases from this year, covering a variety of sanctions, and asked the board to cite the statutes that made information in the orders confidential.

In the case of the chiropractor, for example, some information about why the board revoked his license was redacted because of a federal law that makes alcohol and drug abuse patient records confidential. Other information was redacted because it was attorney work product, according to the board. Peer review information also was deemed confidential.

Another case the board reviewed for The Eagle involved an Aug. 20 order to censure a Shawnee doctor’s license. The final order contains redacted information about non-disciplinary monitoring. In explaining why the information was marked confidential, the board cited attorney work product. The board also ordered the doctor to notify it of any criminal citation, arrest or charge filed against him and of any conviction for a criminal or traffic offense.

More information, however, was available in an initial order against the doctor. It cited four driving-under-the-influence arrests, three of which led to convictions and one of which was disposed after a diversion. The order also said the doctor pleaded guilty last year to felony driving under the influence for a fourth offense. More than three pages of the document, however, are blank.

The doctor said during testimony before the board that “I’m embarrassed. I have regrets. I don’t think I’m a bad person. I think I am a good physician, a good human being. I’ve learned my lesson. I’m a changed person. I’m going to make good decisions regardless of what I do. I like to practice medicine. I enjoy it, and I’d like to keep doing it.”

According to the board’s website, www.ksbha.org, the doctor’s license is still active.

Redaction laws

While some cases contain bare-bone facts and mostly legalese, others read like TV movie scripts.

Over the years, for example, the board has heard cases involving doctors sleeping with patients and giving them drugs illegally to feed addictions and doctors who fondled the breasts of patients during examinations. One 2001 case gave details of a doctor who used a tuning fork during an exam to check vibratory sense and “put the tuning fork on Patient DH’s crotch and asked her if it excited her.”

Why was that information made public and the chiropractor’s revocation deemed confidential?

The answer is simple, Lippert said: There were no federal or state laws that required information in the 2001 case to be redacted.

“We really are just trying to follow the law – redact what is required and provide what is authorized,” Lippert said in an e-mail to The Eagle. “All with the constraints that everyone is subject to – limited time and resources. In an effort to get information out as timely as possible, there may be mistakes either failing to redact what is required to be redacted or redacting when it is not required. However, the goal remains the same – to follow the law.”

The board found it accidentally redacted information it should not have in five of the 13 cases The Eagle asked it to review. However, what was erroneously redacted was merely references to statute numbers and not substantive facts.

A paralegal for the board who is supervised by an attorney reviews information to determine whether federal or state laws require redaction.

“We have a paralegal who’s been doing it for years and is pretty in tune about what those statutory requirements are,” Lippert said. “If there’s ever a question, it will be reviewed by an attorney.”

Amendments to the Kansas Judicial Review Act have impacted the board, Lippert said. The board is including more factual findings and the agency reasoning “to avoid appeal issues,” a memo provided for legal training for board staff said.

“The more factual information included in orders, the more information that may be subject to various state and federal confidentiality laws,” the memo said. “This is not to say that previous were inadequate, but it is most prudent, in light of the statutory and case law changes, to add information to avoid problems rather than rise adverse appellate decisions.”

If the board “only puts a few facts” in an order, the order is more likely to be reversed on appeal, Lippert said.

The Eagle asked Lippert if the board could cite the applicable federal or state law each time information is redacted, like it did in the 13 cases The Eagle asked it to review.

“I don’t have a plan to do that, and the reason for that is I’m trying to use limited resources as best as I can. I only have so much staff I can dedicate toward this,” Lippert said.

Taking time to cite the law would slow down the board’s orders, she said, “and from a public protection point of view, I think it’s important to get the documents out there” as quickly as possible.

“Open records is a portion of one person’s job description,” she said. “They have many other tasks that they’re required to do. I wish I had one full-time person. I wish had two full-time people. But my budget keeps getting cut and reduced despite the fact that we’re fee-funded.”

Under the Kansas Open Records Act, the public, such as The Eagle did, can request that citations to the applicable law be provided for redactions.

More information?

Myra Christopher served on the board for one term and said it was the most difficult, and time-consuming, volunteer work she’s ever done. Preparing for monthly meetings, she said, often meant reading 2,000 pages of reports.

Christopher is the former president and CEO of the Center for Practical Bioethics and now holds the Kathleen M. Foley Chair in Pain and Palliative Care at the center.

“Should the public have more information?” she considered out loud during an interview. “This is sort of a tricky proposition.”

Christopher has served on the board of the Federation of State Medical Boards and said state boards “really have a dual responsibility. One is that the boards are charged with making sure that the people of their state receive quality care. The other is that they protect the public from incompetent medical practice and from unscrupulous practice. What they also face is a balancing act.”

State boards, she said, especially those in rural areas that have a difficult time recruiting and keeping doctors and other health care professionals, also must be mindful “of the real investment that people generally make in becoming physicians.”

Christopher said she’s “all for people having all the information they need to make good health care decisions. The board is intent upon making necessary information available to the public. But we also want to be respectful of those who practice medicine. Doctors are not infallible. They’re not gods. They’re human beings.”

Lippert noted that while information in an order might be confidential, the public can ask a health care provider why they were disciplined and how they are being monitored.

She also encourages people to use open records to learn more about health care providers in Kansas.

The board’s website has a searchable database where prospective patients can check to see if a provider’s license or registration is active and whether they’ve ever been disciplined.

“Decisions are best made with good information and available information,” she said.

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