BY ALEX J. KEOSKEY

COMMENTARY

Ask any five people you know: "Ever had a bad experience, or know someone who has had a bad experience, with a doctor?" The chances are good that at least one or two of them will provide you with a frightening tale of a relative, spouse, friend, acquaintance or dearly departed who was the victim of a "bad" doctor. This will sometimes be followed by an expression of resentment that "nothing was done" to punish or admonish that doctor. It may be concluded with an ominous warning regarding the negligence of doctors and hospitals in general.

However, those same five people may be unaware of the existence of a vital state agency that wields almost unlimited power for the purpose of policing physician malpractice and misconduct — The New Jersey Board of Medical Examiners.

The Board is the regulatory body of the state of New Jersey which establishes qualifications of applicants for medical licenses as well as standards for the practice of medicine in our state. It's most significant role however, is as disciplinarian for licensed physicians who do not adhere to those requirements. On any given month, a physician, podiatrist or psychiatrist licensed by the Board may temporarily or permanently lose his or her license to practice medicine for violations ranging from insurance fraud, substance abuse, a criminal indictment, medical malpractice or negligence, or other misconduct.

The New Jersey State Board of Medical Examiners gets its enforcement power from its pecking order within state government. The board is an agency of the Division of Consumer Affairs, part of the most powerful appointed post in our state government, the Department of Law and Public Safety, headed by the state Attorney General. However, the Board, on its own, has no independent means to search out and uncover physicians who may be found wanting with regard to their quality of care. Although the Board conducts ongoing investigations of doctors, an investigation can only begin when the Board receives information from an outside source. As a result, the Medical Board's investigation almost always originates with someone-a colleague, a hospital supervisor, an insurance company investigator, an office employee, a patient or even a spouse-- reporting that doctor to the Board.

When the average citizen imagines doctors being held to account for misconduct or malpractice, they mostly think in terms of a medical malpractice lawsuit, brought and tried by private lawyers in civil court, alleging harm from negligent medical treatment and seeking money damages from the doctor (or, more than likely, his insurer). For those whose lives and occupations offer them little contact with health care outside of their visits with their family doctor, the assumption is that the ultimate punishment for any physician believed to have committed gross errors or negligence in the care of a patient is a civil lawsuit filed by an attorney alleging malpractice. In fact, a more nerve-racking fear for practicing physicians is an action initiated against them by the Board of Medical Examiners, with the assistance of the State Attorney General, who prosecutes such cases.

While a lawsuit naming them as a defendant is clearly a source of stress for any busy physician, almost all doctors are insured for such claims. When a doctor is investigated by the state Medical Board, those same insurers will not provide a defense, since it is not a lawsuit, but a regulatory action by the government. When a doctor is sued by a former patient for malpractice, the physician is aware that, whatever the outcome, the lawsuit will be handled by his/her medical malpractice insurer, who takes over the defense of the claim in civil court with limited day-to-day involvement from the doctor.

While no doctor wants to endure a burdensome lawsuit or the possibility of an adverse judgment, most would prefer it to an adverse action by his or her state Medical Board. A Board investigation can result in a wide range of actions which can run the gamut from a simple request to the doctor for a written explanation to a sudden notice from the state Attorney General seeking the temporary suspension of the doctor's license to practice medicine in this state. When a doctor thinks of a malpractice suit, he thinks of the worst-case-scenario as an increase in his insurance premiums; when he receives a letter from the Medical Board notifying him of an investigation, he envisions the Attorney General entering his office with a subpoena and removing his license from the office wall.

If such license suspension is imposed on that doctor by the Board, for a term of anywhere from six months to several years, the result for that doctor is not only an abrupt loss of their livelihood, but a devastating impact on their patient's medical care and possibly, irreparable damage to their reputation. Comparing a license suspension to a simple layoff or firing misses the point. A person fired or discharged from employment can attempt to find employment elsewhere, in the same or similar position. For the doctor, that is not an option. Suspension means inability to practice anywhere in the state and, due to what are called "reciprocity" laws, in other states as well. Everything from mortgage payments to college tuition may have to be abruptly deferred. This sudden loss of income, coupled with the payment of legal fees to qualified counsel who have the tools to represent the doctor before the Medical Board, can easily spell financial disaster for the average physician, even one with a thriving and successful medical practice.

It's difficult to overstate the scope of the disruption when a doctor who heads a thriving practice caring for hundreds, perhaps thousands of patients is suddenly barred from seeing persons he has treated for many years. Those same patients must be notified and told to find other sources of care. Those scheduled for surgery or with significant chronic ailments are suddenly and without prior warning denied care from a person whose invaluable perspective regarding the history of their ailment, medication, and prognosis is taken away without warning.

Tripwires

New Jersey is one of many states that have created increasingly strict notification systems that alert other state's medical licensing boards, HMOs, hospitals, patients and other relevant parties when a physician has been the subject of a malpractice settlement or payment, or when his or her license is the subject of a regulatory action affecting their practice. How this reporting system works is not generally known.

To gain information about potentially sub-par physicians, the board relies on a network of laws and regulations or "tripwires", which mandate reporting of these doctors by others who become aware of the doctor's misconduct. These tripwire notification systems work to alert other state's medical licensing boards, HMOs, hospitals and other relevant parties when a physician has been the subject of a malpractice settlement or payment, or when his or her license is the subject of an adverse regulatory action. A current state law which mandates reporting by a physician of negligence or violations of the Board's regulations by a fellow doctor or colleague is an effective means to detect when doctors may pose a danger to the public. Another is a requirement that hospitals report to the Medical Board whenever a doctor's hospital privileges are limited in any way.

In the world of private health entities, which have become heavily involved in health care, there are also tripwires that serve the same purpose and are just as effective at spotting problem physicians. All insurance contracts between doctors and their malpractice liability insurer, as well as Medicare, Medicaid and private health care payer/providers that cover their patients, require that the doctor notify the insurers immediately whenever their license or hospital privileges are affected in any manner. The language in these contracts has been broadened continually over the years to encompass even the slightest infraction at the hospital or Medical Board level. Language within such contracts between physicians and insurers has gradually evolved to require notification to the payer/provider and malpractice insurer whenever a physician has undergone a "restriction, limitation, loss, surrender, modification, censure, suspension, revocation or probation" of his or her license to practice. In other words, almost any action whatsoever against the doctor, however mild or routine.

The National Practitioner's Data Bank

In 1990, the National Practitioner Data Bank, or NPDB, was instituted. The NPDB is a clearinghouse for reporting of a doctor's Board disciplinary actions, malpractice payments from lawsuit verdicts or settlements, exclusions or prohibitions from the Medicare and Medicaid programs and U.S. Drug Enforcement Administration actions. The database was spawned by the public outcry over the increasing occurrence of medical malpractice litigation and the subsequent push to improve the quality of medical care. The New Jersey Board also has access to the NPBD, providing them with yet another invaluable tripwire. Doctors understandably do their best to avoid being reported to this databank. However, the NPDB can only be accessed by hospitals and other health care entities engaging in review of that doctor's credentials or peer review, including professional societies and Boards of Medical Examiners of the fifty states. Plaintiff's attorneys, the health care practitioners themselves or patients cannot gain access to this information.

New Jersey Health Care Profile

The Medical Board has its own consumer-friendly database located on the website of the state's Division of Consumer Affairs. Known as the New Jersey Health Care Profile, this link can be accessed by anyone with a computer. It provides information regarding a physician's education, training, and practice. More important, it reveals whether or not a doctor has been the subject of disciplinary actions in the last five years. The site can also be used to file a complaint against a doctor if the alleged infraction rises to the level of Board discipline. Finally, it provides information regarding payments for malpractice claims. It should be noted however, that the amount of malpractice suits or judgments against a physician does not necessarily reflect upon whether that doctor is competent or skilled. Lawsuits are historically filed mostly against physicians practicing in a small number of specialties. The specialist areas that more commonly lead to medical malpractice claims are obstetrics (childbirth), neurology and anesthesiology. As such, the Health care Profile will show more claims against physicians practicing in those areas. In addition, there will naturally be more malpractice claims against any doctors who have been practicing for longer periods of time. In short, more malpractice claims do not always mean more negligence on the part of that doctor.

As health care evolves and efforts to cut costs and prevent lawsuits increase, we can expect to see a trend toward more regulation and more reporting. Look for methods of malpractice detection and reporting to increase along with evolving technology in the years to come. As health care becomes increasingly regulated, doctors will find themselves under increasing scrutiny on every level of their practice.

Alex Keoskey is a partner at DeCotiis, FitzPatrick, Cole & Wisler LLP and member of the Litigation and Healthcare Law practice groups. Keoskey handles a variety of complex litigation, including tort, civil rights and contract matters on behalf of public and private clients. He has acted as litigation counsel for the North Hudson Community Action Corp. and the New Jersey Turnpike Authority. Mr. Keoskey also defends licensed physicians, chiropractors, nurses and other health professionals before their respective licensing boards in New Jersey, the Office of Administrative Law and hospital administrations in matters involving medical malpractice, professional misconduct, insurance fraud and regulatory violations.