Wild Inconsistency and Lack of Common Sense Plague State Medical Boards

January 19, 2010 in Health Policy by RangelMD

Dr. Erol Uke of Minnesota  accidentally removed the cancer free kidney from a patient with renal cell carcinoma in 2008. Even in the best of systems, accidents can happen.

Uke told investigators he removed the wrong kidney because he was distracted by beeper calls and other patients and that he failed to read the radiologist’s notes to ensure he was operating on the correct side.

But later he biopsied the wrong organ instead of the kidney on another patient.

Uke’s erroneous biopsy followed about four months later, the Board of Medical Practice said. In that case, the doctor performed a biopsy on a patient’s pancreas rather than a kidney.

Right procedure. Wrong organ. Times two. But Dr. Uke has been practicing since 1982 and has no prior record of such medical mistakes or disciplinary actions. A psychological evaluation did not mention any other associated or mitigating factors such as a medical illness, psychiatric illness, or substance abuse. Still, the Minnesota Medical Board took several strict steps.

[Dr. Uke] cannot practice more than 40 hours per week; is limited to outpatient surgery in clinic or office settings; is subject to quarterly reports to the board by a supervising doctor; and must meet quarterly with a board member.

Restricting his practice to the outpatient setting alone is financially devastating enough since surgeons make most of their money from inpatient procedures and any interruption in being able to perform these procedures for a significant length of time (>6 months to a year or more) is considered enough to degrade technical skills and require re-training (again, more loss of income). It’s unclear why the Minnesota Medical Board took this step instead of the more commonsensical action of an administrative fine coupled with requiring a proctor surgeon to directly oversee all of his procedures for a set time. Maybe there were unreported mitigating circumstances. Maybe it was the publicity and political pressure that surrounded this case.  Maybe the Board didn’t like Dr. Uke’s demeanor or his last name.

To bad Dr. Uke was not practicing in Texas where a dysfunctional Medical Board has established not only a pattern of hyper-attention on cases involving sex, drugs, and rock-n-roll, but lienency towards cases involving fraud and gross malpractice combined with wild inconsistency.

In April of 2003, the Texas Medical Board ordered Grapevine urologist Steven Ash to pay $3,000 and take 20 hours of continuing education on medical errors after he removed the wrong kidney on a patient who had previously undergone a CAT scan that showed a renal mass. Dr. Ash asked for the CAT scans prior to surgery but did not receive them and proceeded with surgery anyway.

Like Dr. Uke, Dr. Ash had no prior cases of malpractice or disciplinary actions by the Board however, Dr. Ash got the professional version of the slap on the wrist because, as the board order states, “he accepted responsibility“, “instituted changes in his practices and procedures“, and “systematic errors of other medical personnel contributed to this error.” Seriously, Medical Board? You blame the system even though the ultimate responsibility rests with the physician and you don’t even detail these “systemic” errors in the order? And would it have been massively different had Dr. Ash biopsied the wrong organ 4 months later? I doubt it, but it gets better.

In June of 2003, the Texas Medical Board fined Dr. John Oswalt the grand total of $2,500 for removing the wrong lung lobe from a patient. He recognized the error while in surgery and preceded to remove the correct lobe. The Board order does not state the reasons for the error though according to the Star-Telegram,  it was due to a “record-keeping” mistake that instructed him to remove the wrong lobe. I.e. Dr. Oswalt failed to double check his own or another person’s notes prior to surgery and, according to the board order, Dr. Oswalt failed to document this mistake for an entire week after the surgery (surgical post-op documentation is supposed to be done right after any procedure). However, the Board didn’t mind any of this since Dr. Oswalt “has implemented procedures to avoid this type of mistake again.” His wrist was thus slightly tapped.

And, again, it gets even better!

Several months after the two wrist poking punishments above, the Texas Medical Board must have decided to jack up their prices and imposed a $5,000 administrative penalty on Dr. Wayne Fortson (then 61 years of age) for “failing to provide the Board with information in a timely fashion.” That’s it. That’s all that is mentioned in the Board order. There were no accusations of harm or threat of harm to patients or other mitigating factors or even a description of the tardy information. And like those above, Dr. Fortson has no prior problems with discipline by the Board.

The obvious message from the Texas Medical Board with these cases is that if you take out the wrong organ and subject a patient to hemodialysis for the rest of their life, then it must be mostly someone else’s fault and a very isolated incident but don’t mess with us and withhold information because we are going to bring the beat-down like no one’s business. Dr. Fortson retired two years later, obviously after being disgusted by the apparent schizophrenia inherent in his state’s Medical Board.

The seemingly solitary difference between Dr. Uke of Minnesota and Drs. Oswalt and Ash of Texas is that Dr. Uke was unfortunate to have two medical errors in a relatively short time. But two mistakes is not necessarily a pattern nor connected to a common root cause. This has been proven by Chaos Theory in which the study of seemingly random and chaotic systems reveals patterns despite the apparent lack of causality or connectivity. This is best described by the common saying, “when it rains, it pours.” I.e. it is perfectly reasonable to expect random unconnected events to happen within a short time period as within a long time period. This applies to weather, water dripping from a faucet and even to human activity like surgical procedures.

Frequency does not necessarily imply a common causality nor predict future event frequency without fundamental changes to a chaotic system. Without proving a connection between the two errors to some significant common variable such as substance abuse, depression, or a sudden decline is skills, the Minnesota Board appears to have overstepped its authority and imposed an unjustified punishment. On the other side of the spectrum, the Texas Board regularly dismisses single event errors with the illogical assumption that a single data point rules out the possibility of a pattern.

Given the serious nature of these medical errors and the inherent uncertainty that comes with having very few data points (reported errors), the logical move by both the Minnesota and Texas Medical Boards would have been to require regular proctoring via an appointed independent doctor of the surgical procedures of these physicians as well as  supervision and oversight of their record keeping and procedural activities for an extended but limited time (4-6 months given the volume of procedures and availability of a proctor). This would help to ensure that the errors were truly random and not due to an inherent problem. Why neither Board did this but instead chose to wonder off on their own misguided ideas about punishment and protecting the public welfare is jaw droppingly mystifying.

The unfortunate bottom line is that most medical boards do not act like impartial, fair, and proactive legal entities as they are mostly made up of doctors who commonly lack any legal, administrative,  or public health experience or training. Nor do they act like the physician-scientists they are with liberal science and mathematics backgrounds that should allow them to make decisions based on probability, risk, outcome likelihoods, and evidence-based literature.

The common wisdom is that panels of “experts” in their fields can be thrown together with the reasonable expectation that given enough leeway, they will be able to make common sense decisions. But the irony is that common sense is a myth akin to asking an expert to estimate how many angels can dance on the head of a pin. In the very least, states need to start to implement disciplinary guidelines (similar to sentencing guidelines in the criminal justice system) to assist our “angel counters” in handing out punishment and protecting the public in a logical and fair manner.

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