Regulations and rules exist for a reason
As we have seen in various professions, whether it be policing, the clergy, or the political class, relying on a particular community to police itself can lead to widespread problems. There’s a reason regulations and rules are usually written in the blood of carelessness. Colleagues that look the other way, gross malfeasance, the buck being passed, cover-ups, institutional failure, and using process to stymie truth seem to occur when oversight to prevent tragedies and consequences are removed. This also has implications for care during COVID-19, since discipline against bad doctors has plummeted during the pandemic, with more medical personnel needed as hospital beds fill up.
The bread and butter of disciplinary actions for many state medical boards are “pill mills,” or clinics dishing out opiates. Those investigations turn on numbers. There are prescriptions with a doctor’s name on them. The investigators count them up and can infer an abuse of a doctor’s privileges in the data. The actions of incompetent, negligent, or abusive doctors revolve around judgments of skill and intent that can be more complex. There’s a need to gather records, consult with experts of the same specialty, and that might be a more laborious undertaking for a state medical board’s resources.
According to a 2019 report from the nonprofit consumer advocacy group Public Citizen, there are 8,633 doctors in the United States with five or more malpractice payouts. Among those almost 9,000 doctors, three-fourths have never had a medical board licensure action of any kind brought against them, either serious or non-serious. Between 2015 and 2020, only 0.2% of doctors have been reported to the National Practitioner Data Bank for sexual misconduct, a figure which is much lower than what would be expected based on other research.
When there are no consequences, all of these issues have a way of coming back to bite administrators and medical boards in the ass, which has been seen in a number of recent cases. The University of Southern California’s (USC) handling of Dr. George Tyndall amid allegations of racial discrimination and sexual assault over the course of nearly three decades became a scandal when the breadth of complaints became public.
Content warning: This video contains descriptions of sexual misconduct.
From 1989 to 2016, Tyndall served as a gynecologist for the school’s student health center. In over 600 pages of records, numerous complaints of inappropriate and abusive behavior had been adjudicated by the university—and, in each case, Tyndall was allowed to continue in his position. USC would eventually pay out $1.1 billion to over 700 women harmed by Tyndall. (USC also settled a massive class action with about 18,000 women, so the 700 mentioned are those who opted out of the class action settlement.) Rather than firing Tyndall outright, the university allowed him to resign in 2017. USC did not report Tyndall to the California medical board, either, claiming that since they were not a hospital or clinic they were not bound by the same rules to report. In the aftermath, USC’s president resigned and Tyndall is currently looking at 29 felony charges based on the sexual assault accusations from 16 women.
Across town, between 1983 and 2018, Dr. James M. Heaps served in various capacities with the University of California, Los Angeles (UCLA). In July 2021, UCLA settled a class-action suit for $73 million to some 6,000 who were abused by Heaps over those 35 years with actions ranging from inappropriate comments to groping to sexual assault with an ultrasound probe. In 2019, Heaps was charged with two counts of sexual battery. UCLA’s chancellor, Gene Block, claimed there were no “red flags” about Heaps until a patient complaint in 2017. However, there’s evidence UCLA had been aware of problems with Heaps since at least 2014, and the university had violated their own policy in how they handled the complaints.
An investigation of the California Medical Board found that, in the last decade, there have been around 90,000 complaints against doctors from patients, nurses, fellow physicians, and other parties. Of those complaints, only 3,100 were substantiated by the medical board and led to some form of disciplinary action. Less than 0.5% of the complaints led to a doctor’s license being revoked. Among 10 doctors who were said to have misled patients or acted with “gross negligence that left patients dead, paralyzed, or missing limbs,” the board found nine were deserving of losing their license, but instead dished out probation. Four of these physicians went on to do more harm to other patients according to an analysis by The Los Angeles Times:
Aytac Apaydin, a Salinas urologist who left a piece of wire in a patient’s bladder, leaving him impotent, in pain, and urinating blood for a year. The board revoked his license later, in 2018, for the negligent care of four other patients, but it stayed the order and placed him on probation, allowing him to continue practicing.
Kevin Ciresi, a Fresno plastic surgeon with five convictions for driving under the influence. The board has revoked his medical license twice and then stayed the actions and put him on probation. He is accused of gross negligence in a pending board action for the death of one patient and the permanent brain damage of another. Ciresi denied wrongdoing in civil lawsuits filed in those cases.
John Chiu, a Thousand Oaks surgeon who, when threatened with a third revocation, asked for a “grace period” of a few months to sell his practice without the taint of a lost license scaring off buyers. The board allowed it. On the day before he finally surrendered his license, Chiu botched a surgery, according to a pending lawsuit, leaving the patient in excruciating pain and dependent on a walker.
Lokesh Tantuwaya, a San Diego spinal surgeon whose license has been revoked three times by the board, which placed him on probation each time. His license remains valid as he sits in jail awaiting trial on charges that he took more than $3 million in illegal kickbacks for surgeries in one of the biggest insurance scams in state history.
See no evil, hear no evil, report no evil
A problem in all of these cases is limited transparency. The hard truth is there’s probably more information available to the public about the quality of a used car dealership or a bug infestation in a local restaurant than any possible adverse outcomes by the doctor who might be cutting your mother open for heart surgery. That’s because the data bank of problem doctors isn’t available to the public.
Moreover, the national data bank only works if hospitals and organizations report malfeasance. But those institutions are only required to report a doctor if there’s a revocation of a doctor’s privileges for more than 30 days, or an adverse judgment against the practitioner either by a court, a medical institution’s peer review board, or a state medical board.
However, there is a loophole. If the hospital decides they don’t want the bother of investigations, reporting, and consequences, they might let the doctor quietly resign instead of facing a judgment that would force the institution to report, or take no action even though the practitioner deserves it.
In the case of Christopher Duntsch—the Texas neurosurgeon known as “Dr. Death,” who, as noted in Part I, operated on 37 people and botched 33 operations—at least two Texas hospital systems, including the prestigious Baylor Medical Center, did not report him to the state medical board or the national data bank after egregious performance and behavior. Instead, they just allowed him to resign. Duntsch moved on to another hospital with no red flags on his record, except for the scuttlebutt and gossip of colleagues attempting to warn others. In fact, many of the doctors involved with stopping Duntsch had been told that hospital administrators feared a possible lawsuit if they tried to impede his career. To this end, Baylor allowed Duntsch to operate while he was under investigation—because he had been “cooperative” and “they did not want to interfere with his practice.”
As of Feb. 2020, two-thirds of Texas hospitals had never reported a physician to the national data bank. Only half of the hospitals in the entire country have ever reported a bad doctor. Maybe that’s because most doctors are really damn good at their job. Or maybe that’s because a lot of hospitals and institutions pass the buck, just like Baylor did. If a hospital fails to report a doctor’s behavior, an institution faces non-monetary sanctions, and those sanctions only happen if the federal agency starts a formal investigation and proceeding.
A way forward
Among proposed reforms to tackle these issues are increased regulation, transparency, and consequences. Tightening the requirements for hospitals and institutions to report bad behavior may force administrators to adjudicate consequences for incompetence or negligence, instead of sweeping it under the rug. Making the data bank public and searchable for potential patients would open a new data point when judging a medical professional and an institution’s judgment.
Increased transparency and tougher requirements that attempt to address the loopholes in the system mandating reporting of malfeasance might put more public pressure from patient advocates and others on state medical boards to lay down more discipline.
Finally, maybe we should rethink the settlement caps on medical liability, which have left injured patients with few and bad options. Removing or raising those caps would allow patients to find attorneys willing to help to take on their cases if they know they can recoup costs after working on contingency.
All of this will require stepping on some toes within a professional community. It should offend medical professionals that some of these hospitals, universities, and medical boards allowed awful physicians to butcher people for years, just as it should offend lawyers that hacks like Rudy Giuliani and Sidney Powell still have law licenses, or journalists should be offended that Fox News is considered part of the Fourth Estate. And professional communities have a way of protecting their own and their turf. Calls for reform give way to half-hearted corrective measures or slaps on the wrist for any wrongdoing; there is often a pervasive fear that any changes might rock the boat a little too much. This inability to deal with consequences and insist on accountability holds true for a lot of aspects of society. Being a bad doctor shouldn’t be one of them.