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Many believe that there is a shortage of physicians in the USA, especially in the rural areas.  The Association of American Medical Colleges (AAMC) reports[i] that our nation must begin to increase medical school capacity now to meet the needs of the nation in 2015 and beyond. The AAMC projects that we will need about 125,000 more physicians than today, an increase of about fifteen percent. The projected shortage is likely to be unevenly distributed geographical and by discipline, with the greatest deficiencies in rural areas and in primary care.

Prevalence of the Problem

The problem of physicians loosing license due to disciplinary actions for wrongful acts only adds to this shortage. Wall Street Journal reported[ii] that about 3 out of every 1000 doctors were the target of serious disciplinary actions by state medical boards in the last year (see the table below for the states with the most and fewest disciplinary actions).  The wrongful acts, whether captured and punished or not, are also adding to the financial burdens of patients, providers and insurers.

States with the highest rates, averaged from 2006-2008:

States with the lowest rates:

A complete list for all the states is in the appendix.  There is widespread agreement that the numbers of serious investigations have been declining over the past several years.  There are, however, opposing views about why this is happening.  Some claim that these reductions in investigations are due to improvements in our healthcare system, while others argue that they are due to lack of resources necessary for carrying out the investigations.  Many even blame the government and hospitals who, they believe, are trying to protect the physicians who have committed wrongful acts. An article by Andis Robeznieks, titled “Debate over docs being properly disciplined goes on“[iii] presents viewpoints from both sides.

Regardless of the reasons for declining investigations, the current approach for dealing with wrongful acts is based on faulty thinking.

Faulty Thinking

Most of the proposed strategies for solving the wrongful acts problem recommend spending more money and effort on investigating and punishing the perpetrators.  On the surface, more punishment may appear to be a good idea, but it is a faulty notion since it does not address the root cause of the problem.  That is, punishment does not prevent wrongful acts from being committed in the first place.

Focusing on punishment instead of fixing the root causes creates another sets of problems, including:

• Considerable variability in the rates of serious disciplinary actions taken by state boards,
• Increased spending on investigation and prosecution of wrongful acts
• Worsening physician shortage.

In an article in the Public Citizen,[iv] Sidney M. Wolfe, M.D. and Kate Resnevic in write:  

Absent any evidence that the prevalence of physicians deserving of discipline varies substantially from state to state, this variability must be considered the result of the boards’ practices. Indeed, the ability of certain states to rapidly increase or decrease their rankings (even when these are calculated on the basis of three-year averages) can only be due to changes in practices at the board level; the prevalence of physicians eligible for discipline cannot change so rapidly.

Moreover, there is considerable evidence that most boards are under-disciplining physicians. For example, in a report on doctors disciplined for criminal activity that we published recently, 67 percent of insurance fraud convictions and 36 percent of convictions related to controlled substances were associated with only non-severe discipline by the board.[v]

In this report, we have concentrated on the most serious disciplinary actions…A relatively recent trend has been for state boards to post the particulars of disciplinary actions they have taken on the Internet. In October 2006, Public Citizen’s Health Research Group published a report that ranked the states according to the quality of those postings.[vi] The report showed variability in the quality of those Web sites akin to that reported for disciplinary rates in this report. There was no correlation between state ranking in the Web site report and state ranking in that year’s disciplinary rate report (Spearman’s rho = 0.0855; p=0.55). A good Web site is no substitute for a poor disciplinary rate (or vice versa); states should both appropriately discipline their physicians and convey that information to the public. However, no state ranked in the top 10 in both reports.

This report ranks the performance of medical boards by their disciplinary rates; it does not purport to assess the overall quality of medical care in a state or to assess the function of the boards in other respects. It cannot determine whether a board with, for example, a low disciplinary rate has been starved for resources by the state or whether the board itself has a tendency to mete out lower (or no) forms of discipline. From the patient’s perspective, of course, this distinction is irrelevant. 

Boards are likely to be able to do a better job in disciplining physicians if the following conditions are met:

• Adequate funding (all money from license fees going to fund board activities instead of going into the state treasury for general purposes)
• Adequate staffing
• Proactive investigations rather than only reacting to complaints…
• Independence from other parts of the state government so that the board has the ability to develop its own budgets and regulations
• A reasonable legal standard for disciplining doctors (“preponderance of the evidence” rather than “beyond a reasonable doubt” or “clear and convincing evidence”).

…Most states are not living up to their obligations to protect patients from doctors who are practicing medicine in a substandard manner…Action must then be taken, legislatively and through pressure on the medical boards themselves, to increase the amount of discipline and, thus, the amount of patient protection. Without adequate legislative oversight, many medical boards will continue to perform poorly.

The discussion above reflects the typical approach for dealing with wrongful acts, i.e., by calling for more money to be spent on investigation and punishment, rather than through root cause analysis and implementing strategies to minimize the commission of wrongful acts. Punishment, however, is a double edged sword.

Why Punishment is a Double Edged Sword

In a recent article in The Healthcare Transformation^[vii], Dr. Pandey stated that although criminal activities ought to be punished, canceling physicians’ licenses is not a practical or useful solution for many reasons:

1.      While punishment may avoid future wrongful acts by the perpetrator, the damage has been already done and could have a lifetime impact on the health and wellbeing of the injured patient and his/her family.

2.      The damage done often requires additional medical resources, could be used to help other patients.

3.      The use of personal and public funds to fix the damage strains the patient’s and government’s resources even further. 

4.      The financial impact could devastate a family’s finances and creates another level of burden on taxpayers.

5.      When wrongful acts lead to insurance claims, it can lead to increased malpractice premiums over time and, subsequently, increased cost of care.

6.      In cases where the wrongful act has not been caught, the insurance companies, government, and patients have to pay for subsequent care, thereby raising costs.

7.      For every doctor under serious investigation, common sense dictates that there are many more that “fall through the cracks,” such as those who are under not-so-serious investigation and many more may not meet the threshold of investigation. To understand the seriousness of those falling through the cracks, consider this analogy of comparing wrongful acts to traffic violations.  There are several small automobile run-ins that do not get reported for every traffic accident that is reported. Many more drivers exceed the speed limit or violate traffic lights than those who are caught. And then there are many who speed but they are only a few mph above the speed limit and thus do not register on anyone’s radar. Putting a police officer at every corner of the street is simply impractical. This analogy shows that many wrongful acts probably go unnoticed and pervasive investigation to uncover all incidents is unrealistic. 

8.      Since there is a shortage of physicians, every one removed from practice exacerbates the deficiency, which adversely impacts the quality of care.  In Massachusetts, for example, the Boston Globe[viii] regularly reports that patients are frequently turned away due to its severe physician shortage.

9.      The government spends well over $100,000 of taxpayers’ money on training a physician, and that’s just during residency. This expenditure is wasted whenever a physician is no longer able to practice.

There are, no doubt, other ways a physician with a questionable practice can adversely affect people’s lives and our nation’s economy. What we need is a systematic solution that prevents the need for punishment in the first place.

A Systematic Solution of Prevention

With all the negative impacts of investigations and punishments, might there be alternatives that could protect the patient and reduce, if not eliminate, the possibility of wrongful acts? The answer is YES!  The goal should be to create conditions in which wrongful acts do not occur, thereby preventing the need for punishment in the first place.

Categories of Wrongful Acts and the Common Factors Associated with Them

Wrongful acts can typically be grouped into two categories:

1.     Medical mistakes, which are unknowing mistakes-such as making an incorrect diagnosis, prescribing the wrong medicine, performing a procedure poorly, etc.-due to lack of adequate knowledge, lack of experience, too much distraction, or the like.

2.     Unprofessional behaviors, on the other hand, occur when a clinician knowingly/purposely harms a patient’s body, mind or pocketbook due to greed, emotional problems, addiction, etc.

These two groups of wrongful acts are associated with these four common factors that cause (are reasons for) those improper actions:

1.      Process

2.      People

3.      Technology

4.      System and Structure.

Processes. Wrongful acts may happen because certain processes may be used that are not robust.  A process is considered robust if it is so clear that everyone implements its tasks in a similar way and gets similar outcomes.

People. The people executing the process may not have the necessary competencies or proper ethics, which results in wrongful acts.

Technology. A faulty technology can lead to a wrongful act if, for example, a malfunctioning diagnostic machine gives inaccurate results that appear reliable.  In such circumstances, there is rarely reason for doubt.  Another example is health IT systems that generate false alarms.

System and Structure. There may be no proper system and structure in place-such as reward, review, or punishment-which could prevent or help deal with wrongful acts…

The reasons physicians make medical mistakes or act unprofessionally, therefore, cannot be eliminated by revoking their licenses to practice.  It simply takes one person out of the system and replaces him/her with another who must practice in the same faulty system, with the same faulty processes and technologies, and who may have their own competency limitations and questionable ethics. As such, there is no assurance that the new person will do any better; and he or she may actually do worse. It is a like a leaking tap where water is always dripping. Only by addressing the underlying causes of the wrongful acts can the problem be fixed.

Steps for Addressing the Problem

A sustainable strategy for minimizing wrongful acts, therefore, lies not in increasing investigations and punishments of physicians, but rather in investigations and change. Whatever the reasons for loss of licenses may be, any effective solution must involve proper training, better processes, more effective technologies, and implementation of improved systems and structures.

Such a rational solution is not going to happen as long as we continue to focus on guilt finding and punishment instead of analyzing and understanding the root causes of the wrongful acts.  While there are many discussions about tort reform to achieve world-class healthcare system, there is no talk about taking away the reasons for lawsuits. We all are paying the price for this-care providers, insurance companies, government, businesses, and patients all suffer. Our country needs to start focusing on a credible and lasting solution.

A proactive strategy to reduce the need for these investigations may include following 4 steps:  

1.     Measure the Problem and Behavior: This can be done by interviewing the patients, doctors, administrators, support staff, investigators, and others involved to identify the common issues and the factors that differentiate physicians who have been under investigation from those who have not.

2.     Analyze for Causality: Asking deep questions leading to an understanding of the root causes of the wrongful acts. This could include use of tool such as the 5 Whys and Root Cause Analysis.  The answer to be sought would not focus on why the problem happened, but rather what led to it and what could be done to prevent it in the future.

3.     Develop Solution Strategies: These strategies could range from curriculum modification in medical schools to providing continuing education training. They could also range from creating robust processes and proper visibility metric for care delivery and business performance to proposals for new technology and ways to evaluate a person before admitting to medical school or licensing them to practice.

4.     Creating Implementation Plans. This would involve a detail plan of what should be done, by whom, and when.  These plans could project potential risks, present a strong business case, and provide information enabling all stakeholders to decide on phased implementation. 

 The four steps described above are not intended to provide an exhaustive list of steps. Nevertheless, the proposed framework is robust and the tentative steps reflect the type of activities required to find a way to reduce the wrongful acts. 

A method quite often used these days for developing logic and information driven sustainable and robust solution, for example, is Six Sigma. It focuses on using the data to guide us in finding an effective solution without predetermination and prejudgment. The goal is to identify causes of the wrongful acts and to develop implementable strategies that prevent the wrongful acts-be they intentional or not-from ever happening again. 

In other words, it is important to create a system of quality assurances, not quality controls. Focusing on quality assurance is equivalent to enabling factory workers to execute the manufacturing processes in a manner that ensures high quality deliverables, rather than implementing quality control, which focuses on finding quality defects and blaming them for it. The fact is, many manufacturers have implemented such quality assurance systems, which have served them well.[ix] 

Even though physicians and their staffs do not work in factories, they do execute processes (i.e., tests, procedures, prescriptions, etc.) and produce deliverables (e.g., improved patient health). Being that the quality assurance and performance improvement methods have done so well in the manufacturing world, they ought to be used to improve healthcare quality and efficiency. What is needed is a robust and efficient strategy whose processes promote better outcomes by helping avoid the occurrence of medical mistakes unprofessional conduct, and preventable errors from happening.

This proposed strategy would use diligent data analysis to establish and implement processes that improve performance and minimize mistakes. The outcome would be a substantial reduction in the number of wrongful act investigations.  It would help alleviate the physician shortage problem, reduce the malpractice lawsuits, lessen the cost of care, improve the profit margin of insurance companies, save government money, increase providers’ peace of mind, and patients avoid a life of problems due to a wrongful act.

Source: http://www.biproinc.com/Preventing_Loss_of_Physician_Licenses.pdf

About the authors:  Dr. R. K. Pandey and Dr. Steve Beller