Where Does it Begin and How to Stop It: Opportunities to Prevent “Bad” Physicians

It is not often that medical malpractice becomes a mainstream story but that is exactly what happened to Texas neurosurgeon Christopher Duntsch, aka Dr. Death. News articles, a dedicated Wikipedia page, a popular podcast, and coming the fall of 2021, a new television series tell the story of Dr. Death and his patients.¹ The story has all the elements of a lurid best seller: a seemingly talented and ambitious young physician, several positions with a series of respected institutions, allegations of drug use and extramarital sex, and high risk surgical procedures.

There are numerous guardrails designed to ensure medical professionalism and patient safety, including the American Medical Association (AMA) Code of Ethics for self-policing, laws such as the Health Care Quality Improvement Act (HCQIA) that require reporting of medical disciplinary actions and provide immunity for participants in professional peer review activities, as well as state medical boards that investigate allegations of physician incompetence. Yet, Dr. Duntsch somehow was able to gain privileges at hospital after hospital and continued to operate on patients despite multiple bad and sometimes fatal outcomes.

Unfortunately, Dr. Duntsch is not an isolated case.² In some situations, it seems there is an unspoken understanding among physicians who know the “worst surgeons in town.”³ So the question is: when and how can we most effectively deal with incompetent or unethical physicians? What proactive steps can healthcare facilities and other providers take to prevent the creation of another Dr. Death?

Identifying a Potential Problem Begins at the Beginning

The ability and obligation to identify a potentially troublesome candidate starts at the beginning of the path to becoming a physician. While grades are one reflection of a student physician’s professional ability, they are not a replacement for the honest evaluation of professors and physicians who teach and observe the student. During residency, attending physicians work alongside student physicians and oversee their performance. Ultimately, residency directors have the very important duty of honestly evaluating the skill and competency of a student physician before releasing them to care for patients independently.

The Missouri Occupations and Professions Code, and specifically the statutes related to the healing arts, define unprofessional conduct as, among other things, “any conduct or practice which is or might be harmful or dangerous to the mental or physical health of a patient or the public; or incompetency, gross negligence or repeated negligence in the performance of the functions.”⁴

To the extent an attending physician or a residency director identifies incompetency, or gross negligence such that a student’s conduct would automatically be deemed “unprofessional conduct” under applicable law, there should be a determination as to whether this particular student should be permitted to complete residency and start practicing independently. Based on public accounts of his life, Dr. Duntsch apparently experienced substance abuse issues and he was also identified as having a lack of surgical skills. However, nothing was ever reported or put in Dr. Duntsch’s residency or credentialing file. While substance abuse can be treated and may not be a reason to end a career, suspected physician impairment and/or a general lack of competence to perform as a surgeon should be noted and addressed before the student becomes a practicing physician. In this way, the first step in identifying a potentially “bad” physician starts with the student physician’s teachers, mentors, residency program directors, and supervisors.

Principles of Ethics as a Self-Policing Tool

The AMA Code of Ethics is exactly as it sounds: a set of ethics rules that physicians commit themselves to follow upon entering the medical profession. By becoming a physician, each member is bound by these standards, which should serve as a self-policing tool for the practice of medicine. The first principle of the AMA Principles of Medical Ethics⁵ states, “[a] physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.”⁶ The second principle provides that “[a] physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.”⁷

In theory these principles not only require physicians to provide competent and compassionate care, but they also impose an obligation to report other physicians who fail to meet this requirement. Yet, self-regulation does not always work. Hospitals and physicians with collegial relationships fail to report other doctors – despite the warning signs.⁸ A 2007 survey of 1,662 physicians is illustrative. While 96% of the responding physicians agreed they should report impaired or incompetent colleagues, only 45% of respondents who encountered such colleagues had reported them.⁹

There may be various reasons why self-policing among colleagues has not worked. As a general business model, physicians rely on each other for specialty referrals and some physicians may be hesitant to “tell on” their peers.¹⁰ Fear of professional retaliation or legal liability has also been cited as a reason for staying silent as any issues raised may lead to retribution in the form of peer reviews initiated to get back at the doctor who has spoken up or even a lawsuit.¹¹ Silence fosters more silence when role models, mentors, and colleagues incubate a culture of not reporting concerns. Junior physicians who realize this cultural expectation will be less apt to report their concerns to their supervisors. In one example, albeit an extreme one, physicians performed “makeup” or “clean up” surgeries after a surgeon botched one procedure after another.¹²

Remaining faithful to the obligations cast upon physicians by the AMA Code of Ethics is critical in protecting patient safety. Physicians possess the unique experience and expertise to recognize issues in a colleague’s performance and/or competence. In fact, physician peers may be the only ones who can recognize incompetence or, in the case of surgeries, nuanced problems in technique. Accordingly, the second step in identifying a potentially “bad” physician is the role that physician peers play. A culture in which physicians feel safe and empowered to report problematic colleagues to their employer, the licensing board, etc., will support patient safety and mitigate against the possibility of another Dr. Death.

Employer Responsibilities

The National Practitioner Data Bank (NPDB) is a databank of medical malpractice payments and certain adverse actions related to physicians and other health care providers. The NPDB was established by Congress in 1986 as part of the HCQIA in order to improve the quality of healthcare, protect the public, and reduce healthcare fraud.¹³ Whenever a healthcare provider applies for employment and/or medical staff privileges, hospitals and employers search the NPDB to determine whether any adverse actions or malpractice payments were reported as to that provider. In theory, a quick search of the NPDB should be able to identify whether a particular physician may be problematic. However, in practice, healthcare entities (like hospitals that have a legal obligation to make the report), do not always discipline their physicians such that it becomes reportable to the NPDB. In fact, an investigative piece by a Texas television station found that “two out of three Texas hospitals had never reported a ‘bad’ doctor to the National Practitioner Data Bank [NPDB] …,”¹⁴ Given the universal concerns about the potential impact on a physician’s career and/or legal liability, the Texas statistic may not be unique to Texas. In Missouri, the St. Louis Post Dispatch found that from 2004 through 2008, Missouri’s 140 hospitals reported only 41 actions against 32 doctors — or a little more than eight a year.¹⁵ The same article also cited to a statement by the former director of the Missouri Board of Registration for the Healing Arts as saying that the board may never hear about some doctors because a hospital may try to “salvage” a doctor through internal rehabilitation.

The NPDB reporting system is not perfect. Based on the perception that reporting to NPDB can negatively impact a physician’s career, hospitals may choose to impose disciplinary actions in a way that does not trigger the reporting requirement. For example, hospitals may choose to restrict a provider’s privileges for less than 30 days, because only actions that adversely affect a provider’s privileges for more than 30 days are reportable. In addition, “administrative actions” that do not involve a professional review action are not reported to the NPDB. While professional incompetence may be harder to discipline through an administrative action, often times, for example, delays in medical record completions, or expiration of board certifications are dealt with through administrative action. While these may seem like mundane issues, lack of detailed medical records, or expired board certification, could most certainly affect patient care.

Outside of the NPDB framework, healthcare providers rely on the reporting of other providers through the credentialing process to determine whether a particular physician should be granted privileges to practice at a facility. However, not all references from past employers or affiliated providers can be relied upon. For example, in Kadlec Medical Center v. Lakeview Anesthesia Associates, Dr. Berry, was terminated by his anesthesia group and had his medical staff privileges revoked at Lakeview Medical Center for substance abuse ¹⁶ Neither his anesthesia group nor Lakeview reported Dr. Berry’s impairment or terminations to the Louisiana Board of Medical Examiners or to the NPDB. Dr. Berry later applied for privileges at Kadlec Medical Center. As part of its credentialing process, Kadlec reviewed referral letters from Dr. Berry’s former anesthesia group and Lakeview. The anesthesia group described Dr. Berry as an “excellent physician” and an “asset.” Lakeview’s letter simply confirmed that Dr. Berry had been on the medical staff. Kadlec credentialed Dr. Berry, and he began working at the hospital. Unfortunately, Dr. Berry relapsed and caused grave patient injury, resulting in a malpractice lawsuit against Kadlec. Kadlec then sued Dr. Berry’s former anesthesia practice and Lakeview claiming that their misleading referral letters led to it hiring Dr. Berry and, thus, having to pay substantial amounts to defend the malpractice lawsuit. In its opinion, the Fifth Circuit stated that the anesthesia group and Lakeview owed a duty to Kadlec to avoid affirmative misrepresentations.¹⁷ Consequently, the anesthesia group breached this duty because its letter stated that Dr. Berry was an excellent physician and an asset, which was false and materially misleading. On the other hand, although Lakeview omitted information that would have been helpful to Kadlec in making an informed credentialing decision, it did not make any affirmative misrepresentations. For that reason, the Court held that Lakeview did not have an affirmative duty to disclose the information.¹⁸ Further, the court also noted that, while there may be an ethical obligation to make such disclosure, Lakeview was “rightly concerned about a possible defamation claim if they communicated negative information about Dr. Berry.”¹⁹ Thus, it was reasonable that Lakeview would not offer the negative information in its letter. The Kadlec case shows, first, that some references may not be completely truthful, and second, even a truthful reference may not provide sufficient information to determine the competency of a physician.

Increased oversight on physician practices may require Congressional action. But absent such intervention, it may be necessary for medical staffs and employers to take a stronger approach to discipline physicians that lack competence or who experience other issues, whether behavioral or otherwise. Accordingly, the third step in identifying potentially “bad” physicians is the employers and healthcare facilities that interact with providers on a day-to-day basis. Whether such responsibility entails reporting to the NPDB, notifying the applicable physician’s next employer, or simply cultivating a culture that supports reporting of concerns, employers and facilities where services are provided can mitigate against the creation of another Dr. Death.

The Role of the Peer Review Process and State Medical Boards

All states have some form of peer review requirements in place, and accreditation agencies, such as the Joint Commission, require peer review to address requests for privileges and improve the quality of care. Even with peer review processes in place, the lack of standardization across states and facilities can present challenges in effectiveness.²⁰ The collegial and business relationships between physicians at the same hospital who have to serve on peer review committees to evaluate their peers and business partners can also pose conflicts of interest. In addition, despite the immunity for good faith participants in the peer review process extended by HCQIA and state peer review statutes (including Missouri), the same fears about retaliation and/or reputational damage noted above also exist in the peer review context.²¹ Further, smaller hospitals often face the additional challenge of having only a few specialists, limiting the ability to have a “true peer review” of another specialist without incurring the expense of retaining a third-party reviewer.²²

The AMA Journal of Ethics states that state medical boards are responsible “to serve the public by protecting it from incompetent, unprofessional, and improperly trained physicians.”²³ The state boards are responsible for overseeing the standards of professional conduct, protecting patients, and enhancing the quality of health care. Yet, despite several governmental databases and other agency protections in place, state medical boards regularly fail to act and hold doctors accountable. ²⁴ For example, it took almost a year for the Texas Medical Board to revoke Duntsch’s license in spite of complaints from a number of doctors, several dead and maimed patients, and another doctor going down to the board and screaming at a board member.²⁵ Inaction by state medical boards may be caused by a lack of resources or gaps in the law that protect doctors from discipline under medical board rules.²⁶ Finally, when state medical boards do act to limit or terminate a physician’s license, due process in the form of an administrative hearing, can delay action necessary to protect patient safety.²⁷

Despite these challenges, peer review processes and state medical boards exist to protect patient safety and identify “bad” physicians. Accordingly, the final step in preventing another Dr. Death is the peer review process and active oversight by the state medical board.

Recommendations and Key Takeaways

As a self-regulating profession, physicians and other healthcare providers are expected to be proactive in policing themselves and each other. Consider the following tools:

1. Ensure that physicians understand and abide by the AMA’s Code of Ethics.

2. Identify and address problems early. The sooner a problem is identified and addressed, the better for patient safety and the greater likelihood that the physician can be successfully rehabilitated.

3. Honestly evaluate and support medical residents so that when they graduate from their residency program they are prepared to practice independently.

4. Conduct due diligence when seeking reference information. If a previous medical staff or employer simply confirms without elaboration that a physician was on the medical staff or was an employee, follow up to determine why they left and whether there were any issues related to competency or professionalism.

5. Cultivate a culture that supports reporting and those involved in the peer review process so that concerns can be addressed.

6. Revisit current peer review processes and committees to ensure that a variety of specialists are involved in the process, and a wide range of experiences are represented.

7. Ensure that there are structures in place to support reporting and rehabilitation. For example, many hospitals have a well-being or similar such committee dedicated to assisting physicians to overcome competency, behavior and substance abuse issues. Additionally, compliance programs and ethics policies should include provisions that encourage and support honest evaluation, reporting and rehabilitation.

If a potentially “bad” physician is identified, seek the counsel and advice of outside parties, such as consultants or attorneys who can objectively assist medical staff administrators and human resources leaders in navigating the issues raised while minimizing the potential liability.