First in a two-part series
The patient was partially sedated as she headed for a dental appointment that December morning in 2003. Groggy and horizontal in the back seat of her sister’s car, she was just blocks from the dentist’s office when her cell phone rang.
“Your procedure’s been canceled,” her husband told her. “Your doctor had an accident.”
Meanwhile, a few blocks farther south, a little drama was unfolding. Earlier that morning, according to a police report, Murray police had received a call from a worried employee: Her boss’s car was in the parking lot, but nobody answered when the employee banged on the office door.
When police pried the door open they found the dentist, Kathleen McCombs, sitting on the floor, an oxygen mask over her face. McCombs, who had come highly recommended and was on an insurance list of preferred providers, had been up all night inhaling nitrous oxide, according to police.
It would take another day, and some luck, for the patient to find out the barest of details. It would take several months, and filing a government records request, to get the police report. And only later did she learn, from public records purchased from the Utah Division of Occupational and Professional Licensing, that the dentist’s nitrous abuse dated back to 1999, when she entered the state’s confidential drug “diversion” program, which she’d successfully completed just seven months before.
Why, the patient wondered, was she only finding this out now?
Meanwhile, two days after the dentist’s “accident,” the patient got a phone call. “Hi,” said a cheerful staffer. “I’m calling to see if we can reschedule your surgery.” By then, the patient, Deseret Morning News reporter Lois Collins, had found another dentist to do the work. But she wondered about the dentist’s other patients who weren’t privy to the information she now had.
That question spawned others. How much do any of us know about the doctors who diagnose us, put us under, cut us open, care for us? How much can we find out? Are we, as patients, protected from doctors who could harm us?
Most Utah doctors do not do drugs or sexually molest their patients. Most are not incompetent. Many, in fact, are exceptional.
But to wade through even a few of the reams of disciplinary reports on file at the state’s Division of Occupational and Professional Licensing (DOPL) is to be reminded that doctors can be disappointingly human; that they are tempted by the painkillers they prescribe and sometimes sloppy about the care they provide.
One clue to a doctor’s history can be found at www.dopl.utah.gov. The Web site will tell you if your doctor has licenses to practice medicine and dispense controlled substances; whether those licenses are active, revoked, suspended, surrendered or on probation; and the years when past disciplinary actions occurred. If you pay DOPL $12, you can get some details.
But even if you’re savvy enough to investigate your doctor, there are important facts you won’t find out.
— You can’t find out whether DOPL is currently investigating or negotiating a disciplinary action against your doctor, a process that can take months or even years. While investigation and negotiation continue, a doctor is usually allowed to keep working.
— You can’t find out if your doctor was ever in a confidential treatment program for drug or alcohol abuse, or is in treatment now while he continues to practice. Even if DOPL once issued an emergency suspension of your doctor’s license, if he then went into the confidential drug program the disciplinary action will not be listed on the Web site.
— You can’t find out whether a hospital has ever disciplined your doctor. You cannot find out whether a hospital wanted to discipline your doctor but backed down because it feared your doctor would sue. Hospital information is not available to the public, although it occasionally surfaces in a lawsuit if the doctor does sue the hospital.
— You can’t find out whether your doctor did poorly during his training, perhaps being shuttled from one residency to another. Medical school and residency programs operate on confidentiality — even DOPL isn’t privy to this. A doctor interviewed for this story tells this joke: “What do you call the person who graduated last in his class in medical school? Doctor.”
— You can’t find out how many malpractice lawsuits your doctor has settled. Like hospital disciplinary actions, malpractice settlements must be reported to the National Practitioners Data Bank — but the version available to the public does not include names.
— You can’t assume doctors on your health insurance provider list have never been disciplined. When the Deseret Morning News cross-checked the names of doctors who have been put on probation by DOPL in the past three years against the “preferred provider” lists of several of Utah’s largest health insurance companies, nearly all the disciplined doctors had made at least one of the go-to lists.
— You can’t pick every doctor who will care for you. Patients don’t select an anesthesiologist, an emergency room doctor, the after-hours-clinic crew. There’s no way to look them up in advance.
— You can’t always tell if the doctor doing a procedure was adequately trained to do it. For instance, a doctor may learn to do cosmetic laser treatments at a weekend retreat.
— And you can’t find out about doctors who have not been investigated or have been investigated but never disciplined. Malpractice attorney Eric Nielson complains about a doctor he calls “one of the most incompetent doctors I’ve ever run into” but has no black marks against him from DOPL.
The many things you can’t find out make it difficult to assess how well you’re protected by the regulatory bodies and the health- care system that you probably assume keeps you safe. The things you can’t find out make it difficult to know if that doctor whose name you see in the Yellow Pages is the doctor you want to trust your skin or feet or life to.
At the same time, the things you can find out about your doctor – – the fact that he has been put on probation, for example — may not mean he’s a doctor you should avoid. There are degrees of culpability and potential harm to patients (a doctor might be in trouble because his secretary forged a prescription, or he might be injecting the drugs himself; he might have kept sloppy records or negligently killed a patient), and a doctor with a history of misconduct may have been rehabilitated.
The circumstances that led to discipline in the first place may even have been stacked against him. There is a Utah doctor, for example, who had sleep apnea but was misdiagnosed, prescribed Ritalin and became addicted. Now his medical license is restricted, and he’s trying to get his life back together.
In researching this story, reporters attended licensing board meetings and consulted patients, doctors, malpractice attorneys and five years’ worth of the quarterly online newsletters that DOPL publishes about disciplined health practitioners. This story includes names of some who illustrate gaps in what patients can know about their doctors, but readers should not assume those named here are “bad” doctors or that the doctors not named here are “good.”
Doctors named in this story have been given a chance to tell their story. Many accepted. Periodontist McCombs was among those who chose not to respond on the record.
The government checks up on restaurants, dropping in to see if the cooks are washing their hands, and it periodically keeps tabs on meat-packing plants and grocery deli departments. But the state doesn’t do random checks on doctors’ offices. DOPL doesn’t have enough staff or funding to do that, and it’s doubtful such monitoring would help — DOPL would have to be lucky enough, to use one real example, to show up just when a doctor was stealing Lortab from a co-worker’s purse.
The system for ferreting out questionable doctors seems more hit and miss than you might suppose. DOPL scans the Utah Controlled Substance Database, which primarily identifies people who are doctor shopping for drugs, where it might discover a doctor writing too many prescriptions. Regulators also use it to look into cases where the police, FBI or state fraud units are involved.
That’s how Dr. Alexander Theodore came to DOPL’s attention earlier this
year. The state Insurance Department is investigating the doctor for allegedly operating an OxyContin drug ring in Salt Lake County.
But DOPL relies chiefly on complaints, mostly from patients or their families, occasionally from hospitals, colleagues and insurance companies. If there are no complaints filed, DOPL may not have that doctor on its radar.
Doctors who don’t practice at hospitals are among the hardest to keep tabs on because there’s no one responsible for monitoring or reporting them, says Dr. Marc Babitz, a member of the state Physician’s Licensing Board, which acts as an advisory body to DOPL on discipline matters regarding physicians. And most “doctoring” isn’t done in hospitals but in doctors’ offices. The American Society of Anesthesiologists estimates that 10 million surgeries nationwide now take place in doctors’ offices and free-standing clinics.
Hospitals must tell DOPL and the federal practitioners database when they take away or restrict a doctor’s privileges for more than 30 days. But sometimes a hospital will place restrictions on a doctor for 29 days to avoid reporting, according to several sources.
“It is rare, almost nonexistent, that action taken by a hospital short of revoking his privileges or suspending his staff membership is brought to the attention of the division,” says former DOPL director David Robinson. “You may have a physician who is displaying practice patterns that don’t meet professional standards, and patients have no way of knowing about it.”
“When hospitals try to discipline a doctor, there is a 95 percent chance they will be sued” by the doctor, says a midlevel health- care administrator, voicing a sentiment the Deseret Morning News heard repeatedly. So hospitals sometimes shy away from taking away a doctor’s privileges to practice there On the other hand, says Salt Lake attorney James McConkie, “a good doctor can get crosswise with a hospital and get drummed out.”
If a doctor does lose his privileges to practice at a hospital, patients won’t be able to find out why — unless he sues the hospital. That’s how details about Utah County doctor James A. Brinton surfaced in the early 1990s.
Brinton made headlines after he sued Intermountain Health Care for canceling his hospital privileges at Utah Valley Regional Medical Center and Orem Community Hospital. According to court documents, the hospitals charged that some of the doctor’s hysterectomy patients suffered complications, that a misdiagnosis may have contributed to a baby’s death, and that he delivered more babies than was safe. The case eventually went to the Utah Supreme Court, where Brinton lost.
The Supreme Court never looked at the merit of the allegations the hospitals made, Brinton says. It focused simply on whether a hospital had a right to deny privileges as long as it had an established process and followed it. Because he lost privileges at IHC hospitals, his application at Mountain View in Payson was originally denied. When he appealed the decision to the hospital, he won. He has never been disciplined by DOPL.
Loss of hospital privileges doesn’t automatically trigger DOPL disciplinary action. Between 1991 and 2003, the federal data bank shows that Utah hospitals reported 17 physicians had lost hospital privileges — but only eight of these doctors have ever been disciplined by DOPL, according to the data bank.
DOPL doesn’t know how many of the 7,500 physicians licensed in Utah actually practice here, in part because doctors often have licenses in more than one state. When a doctor gets in trouble in one place, it may take a while for another state to find out, so scrutiny is delayed.
In the spring of 1994, six weeks after he surrendered his license in Idaho in the midst of disciplinary proceedings, Dr. Bradley Spaulding got a job in Utah, where he also had a license, as Milford’s only surgeon. The Idaho investigation accused him of providing care in an emergency room “while under the influence of drugs.”
Although he was not yet on DOPL’s radar, Spaulding soon got in trouble in Utah. Spaulding had told officials at Milford Valley Memorial Hospital about his drug problems and his treatment, but the hospital assumed it was past history. When Spaulding relapsed, the hospital took drastic steps to restrict his access to drugs and the hospital pharmacy. Six months after his move to Utah, DOPL ordered a “quality review process” of his clinical skills and required him to write his prescriptions in serially numbered triplicate.
DOPL revoked Spaulding’s Utah medical license in 1997. According to DOPL files, for several months he had been writing patients prescriptions for painkillers that he then used himself.
In a lawsuit against Spaulding and the hospital, one patient alleges that his drug use contributed to a botched delivery. Some patients loved him, says former Milford hospital administrator John Gledhill. “He was a great doc.” Doctors in places like Milford — not just rural but “frontier,” says Gledhill — are overworked and always tired, “on call pretty much 24 hours a day.”
After losing his license in Utah, Spaulding moved to New York for a residency program. A check with New York’s licensing agency reveals that this month his license was suspended. Spaulding told the Deseret Morning News that he is retiring from medicine for health reasons.
“I think (DOPL) really did treat me fairly. . . . I think they’re making a valiant effort to salvage physicians that have difficulty and still protect the public. It’s a tough, tough job,” he says.
“Drugs and sex.” That’s how Diana Baker sums up the cases her division is working on most of the time. Baker is chief of the DOPL bureau that oversees physician discipline.
DOPL doesn’t keep statistics on such things, but according to the past five years of DOPL’s online newsletters, incompetence or negligence accounted for roughly eight of the 100 physicians whose licenses were either revoked, suspended, voluntarily surrendered or were put on probation
That doesn’t mean that sloppy doctoring doesn’t happen. In fact, most of the complaints made about doctors to DOPL are categorized as incompetence and negligence. But drugs and sex allegations are easier to prove.
Incompetence and negligence are “a very subjective thing,” says DOPL director Craig Jackson. Medicine isn’t like car repair, where the car runs or it doesn’t. Even with very good care, complications occur, people die, and a bad result may have been influenced by extenuating circumstances — as well as by many different people, since medicine is not always practiced one-on-one. It is for those very reasons that malpractice lawsuits aren’t necessarily a good measure of whether a doctor’s “good” or “bad.”
Incompetence may be a matter of chronic ineptness, or of advancing age. “Aging, which eventually affects every physician,” writes Dr. Gregory Skipper, medical director of the Alabama Physician Health Program, “causes decreased memory and motor function, sometimes to a dangerous degree, and some physicians are unwilling to appropriately decrease their practice commensurate with their decreasing ability. How is the public to be protected?” DOPL may not know about such a doctor if a complaint isn’t filed. It only found out one Utah doctor was suffering from dementia when he didn’t properly keep track of the drugs in his office.
Competency cases “are a judgment call,” says licensing board member Babitz, and “that means that a colleague of the physician in question has to be willing to criticize their performance.” There are social and legal constraints to that kind of finger-pointing, such as fear of lawsuits, says Babitz, who adds that “fortunately, I don’t think that there are many incompetent doctors who are practicing.”
The state requires 40 hours of continuing medical education every two years, and many specialty boards are tightening their rules, increasingly requiring members to recertify periodically. But most board-certified doctors in practice before 1996 are “grandfathered in.” The federal database doesn’t list a single case of specialty board discipline in Utah in the past 12 years. There are also fly- by-night “boards” that don’t test competency, Utah Medical Association spokesman Mark Fotheringham warns. They sell “certification” and they’re “not worth the paper they’re printed on,” he says.
DOPL’s 16 investigators — who handle all licensing, from hair dressers to brain surgeons — take an average of 150 days to complete an investigation, but some may drag on for a year or two. Too many cases for too few staffers, and reluctance of physician colleagues to say bad things about each other, are among factors that slow investigations. History shows it could take another year or more, once the doctor hires a lawyer, for discipline to be meted out. Meanwhile, the doctor, innocent until proven guilty, continues to practice.
Some observers say that DOPL is thorough and tough. “What happened to me was so traumatic and damaging — and not just to me but to the people around me,” says one practitioner who ran afoul of DOPL in the 1990s. He said today’s DOPL is more compassionate.
Others see DOPL as too narrow in its focus. “It’s nearly useless to check with DOPL to find out if a doctor is good or bad,” argues malpractice attorney Frank Carney, because DOPL “only covers egregious deviations from proper care.” DOPL’s mission, set forth in state statute, requires that doctors provide only a minimum standard of care. A doctor doesn’t have to be a good doctor. He just can’t be a really, really bad doctor. To discipline, DOPL must show that the doctor exhibited “gross” negligence or unprofessional conduct, or a pattern of such behavior — allegations that must be verified by another physician.
Efforts to make it easier to discipline have been strongly opposed by the state’s strong doctor lobby, says a DOPL insider. Insiders also admit they don’t prosecute a case they’re not sure they’ll win, since proving a case requires money, effort and time.
And, too, DOPL is sometimes hampered when a doctor is arrested for a crime but his sentence is plea-bargained by a county attorney. “That hurts us when we try to discipline them,” says Dan T. Jones, DOPL bureau manager over dentists, chiropractors and a handful of other professions.
“In Utah, if I saw (a disciplinary action) so much as filed (by DOPL), I’d run the other way, because it’s so hard to go through the hoops to get it filed,” says a former DOPL insider, who adds that “it’s easier to go after nurses and social workers than doctors. A physician can put a hundred thousand (dollars) into his defense, or whatever it takes.”
Dr. Richard Sperry, chairman of the PLB, acknowledges DOPL’s limitations. “I think we agree to license some people, as a licensing board, that most of us around the table would never choose to have work on us or a family member. It’s tough as a board to put that aside. We have to be reminded the standard isn’t ‘Would you choose this person?’ “
In some ways, DOPL is like a mother whose three children are all clamoring for her attention. One child is the aching, diseased public. Another is the doctor whose livelihood is at stake. The third is a health-care system that needs doctors to keep it running. The good mother wants to keep everybody happy.
“It’s such a delicate balance,” says Dr. George Van Komen, a past chairman of Utah’s Physician Licensing Board and former president of the national Federation of State Medical Boards. “These are physicians — colleagues — who have the same training you have. You know how hard they worked to get where they’re at. You would like to see them succeed in medical practice. But we do not want to run the risk of harming the public.”
Some doctors would like to be tougher on colleagues whose actions or lifestyles could harm patients. But they say they often are constrained by agreements worked out when the lawyers for both sides weigh in. The result is, essentially, a plea bargain.
Consider the case of Dr. Layfe Anthony. In February 2002, Anthony pleaded “no contest” to a charge of negligent homicide in the death of a Bunkerville, Nev., woman who came to him for outpatient liposuction in late 1999. That night, the DOPL file states, Anthony allowed her husband to pick up a syringe filled with medication for her uncontrolled pain, and take it back to Nevada to inject her. She died the next day. DOPL says Anthony did not have a nurse anesthetist present and did not monitor her vital signs during the procedure. A second liposuction patient died in 2000.
DOPL took action against his license eight months after the second death, issuing an emergency order barring him from doing surgery or prescribing controlled substances. DOPL later handed down a five-year probation.
Anthony “should have had his license revoked,” argues licensing board member Dr. David McCann. Under probation, he is still allowed to practice but only under the supervision of another physician. Anthony declined to be interviewed for this story. His attorney, Peter Stirba, however, says that Anthony is a model probationer.
Still, the frustration of McCann and several other PLB members is apparent at meetings in which Anthony has appeared before the board, which must monitor his probation but had no say in designing its terms. His probation requires that Anthony improve his medical skills, but at the February PLB meeting, McCann blasted his efforts.
“You’ve found people to go to bat for you, but you’ve not done one thing yourself,” McCann told him. “It’s not like we’re against you. But you’re not taking any initiative.”
This is the frank discussion you won’t find in the sanitized, pared-down newsletter that DOPL publishes quarterly on its Web site. And you won’t see those details in DOPL reports.
Even when you pay the $12 for the full DOPL file, mysteries remain. A file may say “voyeuristic conduct” or “delivered infants contrary to established protocols.” You may discover a record has been expunged: a limited record of the facts remains, but the stipulation and other documents are gone, no reason given.
In one case, DOPL investigated a physician and filed a petition alleging sexual misconduct, which the doctor denied. Four years later, DOPL dismissed its petition “with prejudice” — it can’t be resurrected later — and no disciplinary action was taken. But the documents that provided these details are still available from DOPL, a fact that stuns the physician, who thought they’d disappeared along with the charges.
A patient who stumbles onto the document, as the Deseret Morning News did, has no way of assessing its merit. Should the doctor have been disciplined? Should the file have been destroyed? And why did it take four years, from the time DOPL first filed the petition against the doctor, until it was dismissed?
DOPL declined to talk about the case.
As Dr. Charles Walton, head of the DOPL drug diversion program says, “It’s hard to know, literally, what goes on behind closed doors.”
He’s talking about doctors who do drugs when nobody is looking, who write prescriptions and then steal some of the pills back, who try to keep their addictions a secret from patients and colleagues. But there are other doors, too: behind them sit investigators and lawyers, hospital administrators and insurance company executives — all trying to balance the needs of patients with the needs of the health-care system and the livelihoods of all concerned.
On the other side of those doors sit the patients, both trustful and litigious, grateful and a little wary.
“I’m not sure patients shop that well,” says PLB president Sperry. “I’m not sure they’re great judges of quality, so unless there’s a disaster, I think they pick somebody and ride out the storm.”
Dr. Michael Crookston, psychiatrist and medical director of LDS Hospital’s Dayspring program, emphasizes the point with a tale of two doctors. One, a gifted doctor technically, puts off patients with a lousy bedside manner. Another, “one of the worst doctors I’ve seen,” is well-loved by patients because he prays with them.
There are many things about their doctors that patients do not and cannot know. But patients aren’t entirely powerless. They can ask their doctors questions: Do you have current board certification? How many surgeries like mine did you do last year? What’s your success rate? Have you been in treatment for drug or alcohol abuse? Attorney Carney says, on that last one, not to be surprised if an outraged doctor kicks you out of his office.
Patients can ask if a doctor is properly trained to do the procedure. Where did the doctor learn to do varicose vein surgery? Will there be a nurse anesthetist present? If the dentist does orthodontics, where was he trained? Does he have board certification or did he just take a weekend course?
Toupta Boguena didn’t think to ask whether the person who did her laser surgery in the summer of 2001 was qualified. The native of Chad, then a BYU student, wanted to look good for a wedding, so she called the number on an advertising coupon. It turned out that although a doctor ran the stand-alone laser clinic, he delegated operation of the laser to one of his staff who was not formally trained, and the laser itself wasn’t recommended on people with dark skin. Boguena ended up with second-degree burns that disfigured her for months. She sued and won. Checking with DOPL would have made no difference. The physician has never been disciplined.
Patients can ask friends to recommend doctors they trust. And they can complain to the state if they believe a doctor poses a danger. When Janet Brown felt like her father’s surgeon seriously botched what should have been a routine hernia surgery, the family talked seriously about suing. They complained to the hospital through an attorney, and they collected horror stories from the nursing staff about the doctor. It never occurred to any of them, she said, to call DOPL. According to DOPL’s Web site, the doctor has never been disciplined.
“When all is said and done,” says Carney, “the only real way to learn about who the bad and good doctors are is to be a doctor — or a trial lawyer. They, and no one else, know which closets have the skeletons. But the average patient is wandering in the dark without a lamp when it comes to choosing a physician.”
Thankfully, he says, most of the time it doesn’t matter. “The great majority of our doctors are well-trained and good, caring people doing their best, day in and day out. There are obviously those few who are not; a patient must just hope that she doesn’t meet one.”
Monday: Second chances for doctors in trouble
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