A dramatic decline in the number of California hospitals reporting disciplinary actions against doctors has prompted proposed legislation to close legal loopholes and toughen sanctions for facilities that fail to comply.
Democratic state Sen. Liz Figueroa has introduced four bills to protect the public from physicians whose privileges have been suspended or restricted for medical reasons. At issue are those doctors who have been disciplined at one facility yet are able to continue practicing elsewhere because an institution has not reported its punitive action to the Medical Board of California.
Current state law requires the peer review bodies of hospitals, HMOs, medical groups and medical societies to file a report of such actions, known as an 805, with the board. The board can determine if further intervention is warranted, and other credentialing bodies can be alerted to the problem. The information is also reported to the National Practitioner Data Bank.
Over the past decade, the number of 805 reports has dropped from a high of 282 in fiscal year 1988-1989 to 82 in fiscal 1998-1999. Forty-four percent of California hospitals have never filed a report. The sharp decline, coupled with recent publicity about egregious cases of physicians slipping through the system, has the medical board and consumer advocates concerned about a breakdown in the reporting system that could be protecting physicians at the expense of patients.
Physician and hospital groups say the reasons for the decline in 805s may not be evident in the raw data. Fewer reports, they say, could reflect improved quality and accrediting standards that have successfully weeded out inept doctors.
"The idea that there's a crisis in the number of 805s needs to be put in broader context," says Bob McElderry, associate director of government relations for the California Medical Association. "If you look at the broader picture of 805 reporting, we don't think there's a huge drop that should have patients concerned or put peer review under a microscope."
Proposed legislative changes would authorize the medical board to perform audits of peer review data to ensure compliance with reporting responsibilities. Also, there could be more exceptions to the immunity protections now afforded doctors and their peer review files, which physician and hospital advocates say would undermine the spirit of honesty and openness those protections were designed to encourage.
Intentional failure to file an 805 would be deemed unprofessional conduct for licensed practitioners, and hospitals that failed to report would be held strictly liable for injuries to a patient caused by physician conduct that should have been the subject of the previous 805.
"We have no problem with the board pursuing cases where the performance of doctors is not at an acceptable level," says Richard Frankenstein, M.D., a CMA trustee and solo-practicing lung diseases specialist in Garden Grove, Calif.
However, the CMA would like to see a system where, instead of the medical board collecting information randomly, peer review bodies would inform the board of internal investigations before they rose to the level of an 805. Working in a manner similar to a substance abuse diversion program already in place, "confidentiality protections and discretion that we have witnessed . . . lead us to believe a confidential source can operate within the Medical Board environment," McElderry says. The board could then supervise the investigation, in terms of assuring timely completion, "but would only get the final details when indeed they are final," Frankenstein says.
An 805 can effectively be the death knell for a doctor's career, McElderry says. When health plans or hospitals query the NPDB and see an 805, it usually results in the removal of that physician from their networks, even if the physician was never proved to have harmed a patient. Doctors therefore more rigorously appeal investigations that could lead to an 805, and sympathetic hospitals may turn to education and rehabilitation as alternatives to filing a report--yet another possible cause for the decline in numbers.
Officials of the California Healthcare Association, which represents about 450 hospitals and healthcare systems, say they can't explain the reason for the low number of 805s.
"Hopefully it is that there are fewer and fewer problems out there," says Dorel Harms, vice president of professional services. "Sometimes it is not in the best interest of physicians, patients or facilities to report an 805."