Report: Minnesota Board Refrains From Disciplining Doctors

February 7, 2012

A state board that’s responsible for protecting the public from physician errors often shies away from punishing doctors whose mistakes harm patients or who demonstrate a pattern of substandard care, according to a Star Tribune investigation published Sunday.

Records examined by the newspaper show that since 2000, at least 46 Minnesota doctors escaped board discipline after other states took action against their licenses for such missteps as committing crimes, patient care errors or having sexual or inappropriate relationships with patients.

The investigation also found more than half the 74 doctors who lost their privileges to work in Minnesota hospitals and clinics over the past decade were never disciplined by the Minnesota Board of Medical Practice. At least 13 of the 47 doctors who avoided board discipline were flagged for incompetence, substandard care or inadequate skills, the newspaper found.

Board officials said they do everything they can to protect the public from bad doctors, particularly if a practitioner is considered a danger or has a history of substandard care. They didn’t dispute the newspaper’s findings, but said the record reflects a regulatory philosophy that favors correcting problems over punishing misconduct or mistakes.

“I’m satisfied the public is protected in Minnesota – very satisfied,” said Robert Leach, the board’s executive director. “And remember that part of public protection is ensuring an adequate supply of health care practitioners to the public. You can’t take everybody out of practice just because they had a problem. That’s why we’re not in the business of removing credentials unless absolutely necessary. We want to be remedial.”

Among those not satisfied with the board is Susan Zwaschka, who went to Dr. Patrick Carney for a light chemical peel to smooth and cleanse her face before a family vacation. The procedure left her with painful burns and open wounds on her swollen face that oozed fluid and blood.

Zwaschka, an attorney who had often defended physicians in malpractice cases, sued Carney over the 2007 incident. In a deposition, he admitted he was to blame for a peel that “went wrong” and resulted in a “bad outcome.” In 2010, Zwaschka won a $1 million jury award.

Five months later, she asked the board to investigate her case and those of five other patients allegedly harmed by Carney. So far, no board official has interviewed her. An appeals court has upheld the jury award and its finding of negligence, however.

“Where are you, board?” Zwaschka asked. “How many women have to be injured?”

Carney said he was contacted by the board in January about Zwaschka’s case.

“I am looking forward to meeting with them to provide factual information regarding the complaint,” he told the Star Tribune. Regarding Zwaschka’s allegations, Carney dismissed them as “just that, allegations.”

Robert E. Oshel, a retired research analyst for the National Practitioner Data Bank, which tracks malpractice settlements and disciplinary actions against doctors, called the Star Tribune’s findings “alarming.”

“It suggests the Minnesota board isn’t being as diligent in protecting the public as other boards might be,” Oshel said.

The 16 members of the board are appointed by the governor. Eleven members are medical doctors; five represent the public.

Over the past year, the board received 728 complaints against doctors. After reviewing those cases, it initiated 32 actions, ranging from suspending a license to ordering a doctor to get more training.

The board cannot legally release details about investigations that don’t result in public action.

The low rate of discipline has consistently ranked Minnesota near the bottom in an annual report by the Public Citizen’s Health Research Group.

The consumer watchdog organization’s director, Dr. Sidney Wolfe, said Minnesota’s board is “consistently one of the worst in the country” at disciplining doctors.

Altogether, records show, the board has substantiated 363 cases involving mistakes and misconduct by state-licensed physicians since 2000. Eight doctors had their licenses revoked, including four automatically terminated because they were convicted of sexual crimes. The Star Tribune found more than 20 percent of the 363 cases ended in a “corrective action,” which does not count as formal discipline. The vast majority involved substandard care and overprescribing pain medications.

Patients can check out a doctor’s credentials at the board’s website, which contains information on disciplinary actions since the 1970s. But the site does not provide malpractice payouts or adverse actions taken by other states, the federal government or hospitals – information routinely disclosed in more than a dozen other states.

“There could be a doctor with 30 or 50 complaints, and you wouldn’t know it unless the board chose to take some action,” said attorney Chris Messerly, who represented Zwaschka in her lawsuit. In many cases, he added, “you can’t find out who is a good doctor and who is not.”

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