Any discussion of doctors' performance that occurs
during the board's disciplinary proceedings is closed to the public. By
contrast, such hearings are open in 19 of 22 states surveyed by Maryland
legislative auditors.
Two years ago, it appeared that Maryland's General Assembly had opened
access to malpractice histories when it directed the board to create online
profiles for physicians. But the legislation was flawed: Lawmakers
bowed to doctors' wishes to restrict the claims information that would be
made public.
Any court judgment or arbitration award must be posted on the board's Web
site. But the vast majority of claims are resolved by settlements, and the
formula for posting them is narrow - a doctor must have been the subject of
three settlements of at least $150,000 each over five years. In settlements,
both sides agree to terms that put an end to litigation, usually without any
admission of fault.
The site's malpractice claims information is so scant that it is not a
reliable tool to help consumers judge a doctor's background, a Sun analysis
found.
Only four of Maryland's estimated 17,000 practicing physicians were
identified on the Web site as having made malpractice settlements, according
to board data provided to The Sun earlier this year. Payments in those cases
were made between February 1999 and October 2004.
Yet, about 800 doctors settled malpractice claims during the period, board
data show. Some doctors settled two or more claims.
Narrow formula
The formula for deciding which malpractice settlements
are made public is so narrow that it misses some of the biggest, among
them 11 cases resolved for $1 million or more last year, the newspaper
found.
In addition to the four doctors with settlement information, the Web site
listed 129 physicians who had judgments or arbitration awards against
them.
"The Web site is absolutely useless," said Mark S. Cohen, an
Owings Mills malpractice lawyer. "You can get more information about
a 1954 Plymouth than you can about a doctor. It's kind of
disturbing."
The board's Internet site, (https://www.mbp.state.md.us/bpqapp/),
includes a profile of the doctor, with information such as medical school
attended, hospitals that have granted privileges, state disciplinary
action and criminal convictions.
The information is entered by the staff of the Board of Physicians. Pinder,
its executive director, has never been enthusiastic about the system of
reporting. In a March 2003 letter to a key state senator written as
lawmakers debated what to make public, he warned that "malpractice
settlement data can be misleading." Collecting and posting
settlements, he added, would be a "significant operational and
financial obligation" for the board.
T. Michael Preston, executive director of MedChi, the Maryland Medical
Society, which represents 6,500 doctors, said information on malpractice
settlements is of little use to patients and does not reflect a doctor's
competence.
Preston said the public is better served by a system that allows experts
to evaluate, in private, why medical mistakes occur and figure out ways to
prevent them.
"Our emphasis as a state should not be on punitive activity but on
quality improvements and confidential reporting of errors and
injuries," Preston said, adding that the state medical society is
"not going to back down from that."
While Maryland maintains a tight grip on malpractice information, some
states are finding ways to provide far more to consumers, mostly over the
Internet.
Virginia, for example, requires doctors to report all settlements or
judgments in the past 10 years to the state medical board, which posts
them on its Web site without dollar amounts. The payment is defined only
as average, or above or below average, for doctors in the same specialty.
The doctors are allowed to submit comments about each case, and some such
as Blair have done so.
Blair's profile in Virginia lists five Maryland settlements, four for
average amounts and one above average, from 1996 to 2002. He added a few
lines of description, saying that a 66-year- old man died of heart failure
in a 1996 case after arriving in the emergency room with wounds from an
ice pick.
In another settlement that year, his insurer paid an above-average amount
in a case in which a woman hurt in a car crash died after Blair repaired a
small bowel perforation.
In 1999, Blair settled a claim brought by a patient who developed
peritonitis, an inflammation of the abdominal membrane, after hernia
surgery. A case in 2000 involved a 16-year- old pedestrian who arrived at
Prince George's County Hospital after being hit by a car. He died after
being transferred to a Washington hospital "against my advice,"
Blair wrote.
A 2002 settlement concerned a 75-year-old with an intestinal blockage who
died three weeks later from septic shock, an infection that overpowered
his body, according to Blair. "His estate filed suit, alleging a
failure to diagnose a bleeding ulcer resulted in perforation and
death," Blair wrote.
In each case, Blair denied the allegations.
Blair said the Medical Mutual Liability Society of Maryland, the state's
largest malpractice insurer, canceled his coverage because of the volume
of claims but he has obtained a policy with another company at a cost of
$140,000 a year.
"I don't lose any sleep at night," he said. "I do good
work."
Blair is one of at least a dozen physicians licensed in both states who
have malpractice cases posted on their Virginia state profiles that don't
appear on the Maryland board's site.
Dr. Saied Jamshidi, a neurosurgeon who practices in Oxon Hill, Silver
Spring and Northern Virginia, has settled eight malpractice claims since
1995 and a ninth case ended in a court judgment, an unusually high number
for Maryland doctors.
Virginia's Web site describes the amounts of the settlements as average in
six cases, above average in two and below average in one. According to the
Web site, in two of the cases a patient died.
Virginia lists the cases on its Web site and notes that two hospitals
declined to renew his privileges as a result. Yet, Jamshidi's online
profile on the Maryland Board of Physicians Web site makes no mention of
his claims history.
Jamshidi said his insurer settled over his objections. "They were
settled because it is cheaper to settle rather than fight in court,"
he said.
Disclosure rules
The General Assembly attempted to broaden disclosure of
doctors' backgrounds in 2003 as part of legislation that created a new
medical oversight board.
Initially, the reform bill proposed by Sen. Paula C. Hollinger, a
Baltimore County Democrat who chaired the Education, Health and
Environmental Affairs Committee, required the profiles to list all
malpractice jury verdicts, arbitration awards and settlements of $150,000
or more for each doctor over the past decade.
Jury verdicts and arbitration awards remained in the bill as it
progressed, but MedChi ultimately persuaded lawmakers to narrow the
criteria for disclosing malpractice settlements.
Attorney Joseph A. Schwartz III, the group's representative in Annapolis,
said physicians felt the disclosure rules went too far.
"The problem was the settlements," he said. "We knew some
cases were settled where liability had not been established."
Insurers acknowledge that they sometimes settle lawsuits to hold down
legal costs even when there is little evidence that a doctor is at fault.
Schwartz said the medical society learned from insurance data that few
doctors would meet the criteria to be posted on the Web site.
Hollinger said she didn't know that relaxing the reporting standards would
keep so many malpractice payments off the Web site.
"I didn't realize that information wasn't available," she said.
"We're going to have to revisit that."
Hidden claims
Just how tightly Maryland laws conceal a doctor's
claims history became clear in 2004 as the General Assembly debated what
to do about rising malpractice premiums.
At the time, doctors argued that an avalanche of lawsuits and excessive
payments to patients were forcing rates so high that physicians would quit
offering high-risk medical care or pack up and leave the state.
Trial lawyers countered that the solution lay in strengthening the medical
board and setting it on a mission to aggressively weed out error-prone
physicians.
But lawmakers couldn't get their hands on information to help them judge
the merits of either argument - especially records that identified
doctors' claims histories and amounts paid out.
Lawmakers were "flying almost blind," Sen. Brian E. Frosh, a
Montgomery County Democrat, recalled in a recent symposium on malpractice
legislation at the University of Maryland School of Law.
Lawmakers passed legislation that requires insurers to file detailed
reports about every malpractice settlement with the Maryland Insurance
Administration. But an official with the agency said it has no plans to
disseminate the reports.
"I don't believe that would be appropriate," said Randi Johnson,
an associate commissioner. "Physicians are human and they make
mistakes. Just because there are malpractice claims doesn't mean you're a
bad physician."
The Health Care Alternative Dispute Resolution Office, which Maryland law
designates as the first stop for all claims, is the only place the public
can get complete information about how many times a Maryland doctor has
been sued. But the information is of limited value - revealing no
outcomes, for example. Records are not posted online and to research a
physician, a person must go to the office in Baltimore and request data
piecemeal.
8 claims since '95
An analysis of the claims records shows that Dr. Zia
Zakai, a Baltimore County orthopedic surgeon, is among the state's most
frequently sued doctors. Since 1995, patients have filed eight malpractice
cases against him.
That year, he accepted a reprimand and probation, which was lifted in
September 1997. Maryland's medical board, after a lengthy peer review,
concluded that Zakai "failed to meet appropriate standards" in
three cases, including one in which he cut open "the incorrect
knee" in the operating room.
Zakai came to the board's attention because of a history of claims against
him, board records show. Since 1986, he has been a defendant in 17
negligence claims. Maryland's Web site notes the disciplinary action but
not the claims, which do not meet the criteria for disclosure.
Zakai, who is president of the Baltimore County Medical Association,
acknowledged that he's been sued a lot, but denied any negligence. He said
most of the cases stemmed from his work in hospital emergency rooms, which
can increase the risk of claims.
Getting sued "goes with the territory," he said. "I would
say all of the cases are without merit."
Zakai said six of the claims were settled with payments to patients that
ranged from $4,000 to $200,000. Zakai said he won three cases and seven
others were dismissed or he was dropped as a party. One case is awaiting
trial in Baltimore County Circuit Court.
No further disciplinary action has been taken, and Zakai said he is not
under investigation, something the board can't confirm under state law
governing confidentiality.
'What good is it?'
Donna M. Fisher, 51, of Capitol Heights, wishes the
state had furnished information about malpractice claims when she decided
to have breast-reduction surgery in 1997.
"That should be disclosed," she said. "I'd like to be able
to look for this information. If there's nothing there, what good is
it?"
Fisher was a patient of Dr. Carlton Scroggins, owner of Plastic Surgery of
Greater Washington in Greenbelt, records show. The surgeon resolved eight
malpractice claims between February 1999 and September 2003 that were
filed over an nine-year period. Three, including Fisher's, were settled
for a total of $1,175,000; five were resolved without payment. In each
case, Scroggins denied any negligence.
All of the claims were settled confidentially. And they are not mentioned
on the Maryland board's Web site because one payment was under the
$150,000 threshold.
The Sun found the information only because Scroggins appealed to state
insurance regulators after the Medical Mutual Liability Society of
Maryland did not renew his malpractice coverage in January 2004. In
defending its action, the insurer reported the claims and settlements to
the state, which provided the records to the newspaper under the Maryland
Public Information Act.
Scroggins said he has obtained other coverage.
Fisher received a $540,000 settlement as a result of serious complications
from breast-reduction surgery intended to relieve chronic back pain. She
needed a breast implant to realign her chest, according to her claim, an
operation that was performed by a different surgeon.
A New Carrollton woman received $600,000 in 1999 for what her claim termed
"serious, disabling and permanent" injuries sustained as a
result of breast reconstruction surgery. A third patient, from Washington,
D.C., filed a complaint about her plastic surgery and settled for $35,000,
far less than the board's minimum for posting.
Scroggins said two of the women were at "high
risk" of developing complications from diabetes and that he no longer
accepts patients with complex medical histories that could prove
troublesome.
"Our goal is to make people happy and give them what they want. We
are trying to please patients," Scroggins said. "In retrospect,
I probably would have turned some of them away."
Scroggins said no new claims have been filed against him in eight years
and that he runs a "solid practice."
"It's not like I'm maiming people left and right," he said.
"For every three unhappy patients, there are dozens who get
outstanding results and are happy."
M.D. Confidential
The secrecy issue goes well beyond the board's - and
the legislature's - authority. Policies sanctioned by the court system
assist doctors, hospitals and insurers in keeping details of malpractice
cases from surfacing publicly. Judges routinely approve settlements that
include strict confidentiality agreements prohibiting patients or their
lawyers from discussing details of a case. Those who break silence risk
forfeiting any award.
Public records are sketchy in cases settled before trial. Plaintiffs'
lawyers argue that doctors and hospitals often demand confidentiality as a
condition of settling and say that such agreements are nearly always in
the best financial interests of their clients.
Patients often prefer that the amounts not be a matter of public record
that anyone can look up, lawyers say. But lawyers concede that the process
keeps payments and other information in malpractice cases secret.
"There's a real tension in the law on this issue," said Dennis
O'Brien, a spokesman for the Maryland Trial Lawyers Association.
Confidential settlements put lawyers in a "conflicted position"
between their obligation to serve their clients and "the higher
calling of public accountability," said O'Brien, who is an attorney.
"As a matter of public policy, there should be no such
agreements," said Jonathan Schochor, a Baltimore trial lawyer.
"It only benefits the doctor.
"One of the most frequent complaints we hear is that there is no
mechanism for the public to use in making an intelligent choice in
selecting a doctor," he said.
Judges say their hands are tied. Confidential settlement deals are not
much of an issue for judges because "there's no law that prohibits
it," said Judge Evelyn Omega Cannon of Baltimore Circuit Court.
Several lawyers said confidentiality agreements have become more
restrictive, often barring them or their clients from acknowledging that a
settlement was reached.
Stuart M. Salsbury of Baltimore, who has more than 30 years' experience as
a trial lawyer, called the secret settlements a "terrible
practice" and said they should be outlawed in most instances.
"I would be happy if the legislature passed a bill that said
confidentiality agreements are against public policy," he said.
Public credibility
The medical board's policy of deciding disciplinary
actions in private was challenged in a report issued in October by the
Department of Legislative Services. The auditors recommended that the
General Assembly change state law to require open disciplinary hearings.
An exception would be made only if the accused doctor or the person
bringing the complaint can show "good cause" to keep them
closed.
After finding that 19 of 22 other states that were surveyed open such
hearings, auditors suggested that doing so in Maryland would enhance the
"public credibility ascribed to the board process."
"Unfortunately, the confidential nature of many board proceedings
does not assist in this regard," the auditors wrote.
The board now starts its monthly meeting with a brief open session but
tends to the bulk of its agenda after asking the public to leave.
Michael Bennett, president of the Coalition for Patients Rights, a
consumer group formed last year with assistance from Maryland's trial
lawyers, said secrecy "raises suspicions" that the board is
inclined to protect the medical profession.
Dr. Harry C. Knipp, the medical board's chairman, says that the five
consumer members added to the board in 2003 ensure its impartiality.
"We like to think our consumer members are our credibility,"
Knipp said. "Hopefully, they are the eyes and ears of the
public."
While board members agree in principle that hearings should be open, they
say penalties should be discussed in private to encourage frank
discussions.
Revisiting the law
The Board of Physicians will be on the legislative
agenda next session because its authorizing legislation is up for renewal.
Several key lawmakers, one a practicing physician, say they're open to
examining the way the state decides what to disclose on its Web site.
The public ought to know about doctors with lots of claims or payments,
said Frosh, the state senator from Montgomery County. "If a consumer
wants to choose from among physicians, that would be extremely relevant
information."
Sen. Andrew P. Harris, a Johns Hopkins anesthesiologist and member of the
Education, Health and Environmental Affairs Committee, said doctors can be
tarred by a settlement that an insurer agreed to out of fear that a jury
might return a huge award.
"I've known obstetric cases that settled for a million dollars even
though the care was defensible," said Harris, a Baltimore County
Republican.
Still, Harris said Maryland law might have to be "tweaked" to
give the public more information on malpractice claims, though he opposes
casting the "net too wide" by listing every one.
"We have to sit down and put smart heads together to protect the
public," he said. "The current system of reporting is
imperfect."
Confidential warnings outnumber public
sanctions
By Fred Schulte
Sun reporter
Originally published December 19, 2005
In resolving complaints about doctors, Maryland's
medical licensing board is more likely to issue confidential warnings
than impose public sanctions, state records show.
The Board of Physicians has broad power to punish doctors for about 40
types of infractions, ranging from immoral conduct to incompetence. The
board can suspend a doctor's license, revoke it or impose probation and
fines.
In fiscal year 2005, which ended June 30, the board publicly sanctioned
48 doctors and levied $74,500 in fines.
Public orders of discipline are posted as part of a doctor's profile on
the board's Web site (http://www.mbp.state.md.us/).
But the board resolved nearly twice as many complaints by issuing
warnings to doctors, which are kept secret under state law. Because such
cases are hidden from view, there is no way for the public to know the
nature of the complaints.
While the board would not disclose records showing the types of
complaints involved, its chairman, Dr. Harry C. Knipp, characterized
most of the "advisory opinions" as minor in nature and said
many turn on record-keeping problems or issues such as rudeness. They
have increased greatly under his watch, Knipp said, because he has made
it a point to step in and warn doctors as an "expression of
irritation."
The Board of Physicians discloses some information about these cases in
annual reports to the General Assembly. In its report for 2003, the
board noted examples such as "concerns about prescribing
practices," "how to properly complete a breast exam" and
the "threshold for treating a child with breathing
difficulties."
These are cases that don't "rise to the level" of a full
investigation, said C. Irving Pinder Jr., the board's executive
director.
During fiscal year 2003, the board issued 53 advisory opinions. In
fiscal 2004, the panel issued 102 warnings, for the first time exceeding
its public disciplinary actions. The number fell slightly, to 94 in
fiscal 2005, but exceeded the number of public sanctions, records show.
The confidential warnings are not reported to a federal databank that
tracks punishments imposed by state licensing boards. Most HMOs and some
hospitals consult the federal system, called the National Practitioner
Data Bank, to screen doctors and check their credentials.
Where you can find malpractice records
Originally published December 19, 2005
The Maryland Board of Physicians' Web site is the
official source of information about doctors but includes very little
about their malpractice claims histories. To find that information,
consumers must go elsewhere.
All malpractice claims are filed with the Health Care Alternative
Dispute Resolution Office, at 6 St. Paul St., Baltimore. (410-767-8200;
1-800- 492-1951. Web: www.mdarchives.state.md.us/
msa/mdmanual/25ind/html/42healc.html ) Claims can be looked up by name
of the defendant or the person who filed it. Consumers can visit the
office or obtain copies for $15 each.
Records may be found at the courthouse, since claims are rarely resolved
by the alternative dispute resolution office and most get filed as
lawsuits in the jurisdictions where the alleged malpractice occurred.
However, it is unlikely that you'll find out much more. Claims usually
are settled confidentially, without a finding of fault or disclosure of
details such as the amount paid.
Copyright © 2005, The Baltimore Sun