PENNSYLVANIA DEPARTMENT of STATE, BUREAU of PROFESSIONAL and OCCUPATIONAL AFFAIRS

According to the brochure I was mailed, "The Bureau of Professional and Occupational Affairs was established in 1963 as part of the Department of State to provide administrative, logistical and legal support services to professional and occupational licensing boards and commissions. Professional licensing protects the health, safety and welfare of the public from fraudulent and unethical practitioners. There are 27 licensing boards and commissions, each with their own statute governing their powers and functions." In short they license and regulate everything from accountants to veterinarians. At least that's the official line.

Medical Negligence I believed I had good reason to pursue a medical negligence legal claim in civil court. Within weeks after my mother passed away, I phoned four of the legal firms specializing in such malpractice with identical results in each case. Simply put, they were not interested. Why? Because my mother was 75 years old and unemployed. These firms work on contingency and she had little economic value. For me it was a hard pill to swallow. I could have tried to pursue legal action by hiring an attorney on a fee basis, but the costs of bringing a malpractice/negligence case to court are very high. I was considering it nonetheless when I found out about the Pa. State Bureau of Professional and Occupational Affairs Hearings for Medical Practitioners. I phoned their complaints office and was told they do indeed hold hearings on medical negligence and malpractice cases. In addition, there was no time limit on pursuing such action. That appealed to me. I was not really interested in benefiting financially from my mother's death anyway. I had personal affairs to attend to then and I really didn't have the time to pursue legal action. In this state you only have two years to initiate legal action in a negligence/malpractice case. That's not much time. Many survivors are not in an emotional state to take on such a case for some time after such a tragedy. And you can't wait until just a few months before the window closes because legal firms need time to prepare those cases before they are filed. In the end I decided on the PA. State BPOA hearing process. I have since learned to regret that decision.

BPOA Complaint By spring of 1999 I had taken care of my personal problems, researched the medical aspects of the case, acquired my mother's medical records, prepared my formal complaint and submitted it to the PA Department of State, Bureau of Professional and Occupational Affairs Complaints Office in Harrisburg. A few days after submitting the complaint I received a letter from them, acknowledging receipt of my complaint and promising to conduct an inquiry into the allegations I had made. Then they added, "Unfortunately, due to the number of cases, we are unable to provide regular status reports or "updates." You will, at the least, be notified of the final disposition of your complaint." Their notification regarding regular status is an understatement. In fact, in the two and one-half years since I submitted the complaint, they have not provided me with any status that I did not specifically request. I was not satisfied to sit back and wait, so I periodically phoned the Complaints office to check on status. I followed the process of investigation through paralegal review throughout 1999. By December 1999 I was told my case had been forwarded to the Department of State Legal Office where it has been ever since. In effect the investigator and the paralegal that reviewed the case apparently deemed it worthy of due process or it would have been flushed it out of the system before it was forwarded to the Legal Office. The Legal Office attorney who has been assigned my case will not respond to any inquiries directly from me. The only responses I have received have come after legislative prodding on one occasion and after a letter written by an attorney on another. On both occasions the prosecuting attorney claimed he has been unable to obtain a medical expert to review the case. I accepted that argument on March 31, 2000, but not on April 4, 2001. First of all, the case I presented was probably more thoroughly prepared than most complaints the BPOA Complaints office receives from the public. I spent about 6 months researching and preparing this case. Most of my research time was spent building background information for myself in order to avoid error in my conclusions. The complaint I submitted is very detailed. It is footnoted and referenced in those areas where medical opinion is stated. My references can be checked out quite easily at the Hershey Medical Library. A doctor friend reviewed the medical aspects of my complaint. The prosecuting attorney is alleged to be looking for a cardiologist, but that has nothing to do with the need for one. The most serious charge of medical negligence can be established without a cardiologist. Pennsylvania law requires expert testimony to establish the applicable standard of care in medical malpractice/negligence cases. The requirement for expert testimony stems from judicial concern that absent the guidance of an expert, jurors are unable to determine relationships among scientific factual circumstances. However the Court has made an exception "where the matter is so simple and the lack of skill or want of care so obvious, as to be within the comprehension of non-professional persons," Brannon v. Lankenau Hospital, 90 Pa. 588,417 A.2d 196 (1980). Dr. Barton diagnosed coronary artery disease, an obvious life-threatening condition, but for more than a year failed to initiate any effort to help my mother outside of prescribing nitroglycerine to treat her symptoms of CAD. She died from the condition he diagnosed. That is medical negligence and well within the comprehension of anyone competent enough to sit on a jury, certainly a jury comprised of doctors, nurses, and other health care professionals representing the PA State Boards of Medicine. The insistence on a cardiologist is simply an attempt to justify delay. This realization has come over time. As recently as February of this year I was still hopeful my mother's case would be brought to a hearing.

BPOA Hearings Sometime in the late spring of 1999 I decided to attend a Medical Board Hearing. I thought it would be a good idea so that I could gain some insight into the process, as I planned to attend and hopefully testify at Dr. Barton's hearing. I phoned the Office of the Prothonotary requesting scheduling information for upcoming sessions. I picked a convenient time. The hearing involved a doctor who practiced in New York State but also had a license in Pennsylvania. His license was suspended in New York and as a result he had penalties levied against him in Pennsylvania also. The hearing was somewhat interesting, but not relevant to my situation. Later in the year I decided to try again. This time I screened upcoming cases. One of the employees in the Prothonotary's Office allowed me to look over upcoming cases although I had to do it quickly. I looked for the address of the accused in each case. If he or she didn't live in Pennsylvania I knew it was an out-of state case. After going through about 15 cases I finally found a doctor with a Philadelphia address. It was a Medicare fraud case, not what I was looking for, but at least different than the first hearing I attended. The prosecuting attorney for the case was the same attorney assigned to my mother's case. I decided to attend. On October 25, 2000 I drove to the office of the Prothonotary in Harrisburg and waited in the appropriate hearing room for the participants to arrive. Last to arrive and first to leave was the prosecuting attorney. He left so quickly I did not have a chance to speak with him. On the way out I once again searched for an applicable negligence/malpractice case. I went through approximately a dozen cases without finding one that I would consider a primary negligence or malpractice case. There are cases on file in the Prothonitary's office that cite terms such as incompetence, malpractice, negligence and other verbiage indicating the doctor in question presents a health-related risk to patients. However there is almost always another factor, such as a controlled-substance charge, that appears to be the real reason for the action. In such cases, the health-risk to the patient appears to me to simply be a charge of convenience. The only case I could find against a doctor with a Pennsylvania address was a case in which the doctor was accused of fondling his female patients. Although it was not stated in the docket, I suspect the case was being driven by a criminal charge. Interestingly, the "Order To Show Cause" was issued less than 5 months after the last incident of fondling. In my case, my mother had died as a result of medical negligence and an act of incompetence, the case was already in BPOA's hands for 18 months, and there was no end in sight. On my way home, I stopped at the deli next to the building in which the hearing was held. As I waited for my sandwich, in walked the prosecuting attorney I had hoped to speak with. I waited for him to order, and then approached him. I introduced myself and asked the status of my mother's case. He said he didn't remember which case I was describing, but agreed that if I phoned the next day and set up an appointment with him he would go over it with me. I did that, and while it took some time to connect with each other, I was eventually able to set up an appointment with him. Our meeting took place on November 17, 2000. It lasted about two hours. I thought the meeting went well. He seemed interested in what I had to say and even seemed to agree with me on most points. He seemed to have become interested in the medical aspects of the case to the point that I left some of my referenced articles with him. He still has them. He offered me hope by telling me he had a cardiologist in mind who was concerned about the liability provisions of the BPOA contract, but that he would try to use another physician to try to convince him to accept those terms. I left that day with renewed hope.

Hope Fades On February 2, 2001, about 2 and 1/2 months after our meeting, I phoned the prosecuting attorney to ask him if he had made any progress in the case. Once again I had to leave a message on his voicemail. I explained why I was calling and left him my telephone number, address, and email address. Once again he was unresponsive. On February 11, 2001, I sent him a letter requesting the same information. The results were unchanged. On March 16 I had an attorney write him a letter requesting an update of status. On April 4, 2001 he responded to the attorney echoing his letter of a year earlier to the effect that he still has not been able to locate a cardiologist to review the case. As hope faded I began to think more and more about the fact that after going through about 30 pending Board of Medicine cases in the Prothonotary's office, I could not find a single one involving a primary charge of medical malpractice or negligence. At first I just passed it off as being odd, but with the realization that the prosecuting attorney was simply stalling, I began to have suspicious thoughts. On April 23 I drove to the Office of the Prothonotary hoping to gain access to more pending medical cases. When I arrived the same young woman who had earlier provided me with cases to browse was there, but she did not get up to help me. Instead, another woman, perhaps her supervisor, very politely asked if she could help me. I told her that I was interested in attending a hearing involving medical negligence or malpractice and that in the past I had been unable to find one. She asked me why I wished to attend such a hearing, and I explained that hopefully a complaint I had submitted would eventually be brought to a hearing, and I simply wanted to sit through one beforehand. She seemed to sympathize with my reasoning, and disappeared into another room for a few minutes. When she came out she had a case in her hand for which she told me the initial hearing had already been held, but was ongoing. She suggested I take it into another room where I could sit down and read it at my leisure. I said that I would, but I really wanted to find a malpractice case to attend, one for which the initial hearing had not yet been held. With that she said, "We don't have many malpractice cases here." That's exactly what I suspected, but I was surprised to hear it verbalized to me. Perhaps a bit unfairly, I led her on by saying "Then where are they held?" "Here," she stated, "But we don't have any right now," modifying her original statement. She then suggested I come back next month to check again. I went into the other office and examined the case I was given. In this particular case, while incompetence and negligence were cited, it was in conjunction with frequent prescription of various controlled substances over a long period of time outside of State Board of Medicine guidelines. It did not seem to be the type of case submitted by a private citizen. Perhaps it was a FDA driven case. The initial hearing had been held more than a year earlier.

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PENNSYLVANIA STATE BOARD of MEDICINE

The complaint I filed against Dr. Barton has been assigned a Bureau of Professional and Occupational Affairs case number. However, once complaints reach the DOS Legal Office, it appears to be the State Board of Medicine that is the force in deciding cases against medical doctors. They delegate the Hearing Process to the Office of the Prothonotory. Each year the health research group Public Citizen evaluates and ranks states (plus the District of Columbia) on the number of Serious Disciplinary Actions against doctors. That report is available on the World Wide Web at www.citizen.org, search for Publication 1518. In 1999 Public Citizen ranked Pennsylvania 36th out of 51 states in the number of serious disciplinary actions against doctors. They state that in 1999 Pennsylvania took 97 serious disciplinary actions against medical doctors. That's 2.55 per 1,000 doctors. While they don't rank Pennsylvania anywhere near the best states; they don't rank them among the very worst states either. However, they cite this state as disappointing. In their words "But other large states such as Texas, Pennsylvania, Massachusetts and Illinois (24th, 36th, 39th and 43rd in 1999) have not done very much doctor discipline for many of the last 10 years."

Unfortunately as valuable as the Public Citizen report is, it appears to have overlooked some factors not forthcoming from simply counting the numbers. Apparently they have not been provided with anything but the raw numbers. However, I have more data to work with. It's available by piecing together BPOA Disciplinary Data on Medical Doctors through the PA Department of State home page at www.dos.state.pa.us. With this data there is a brief description of each case although it is not always descriptive enough to reveal the true force driving it. I supplemented this data in such cases from more detailed documentation from the Prothonotary's office. The numbers do not agree with the Public Citizen totals. I will discuss this in more detail below in the paragraph titled "Additional Concerns."

Charade In any case Public Citizen reported 97 cases for 1999, but the BPOA count is only 65. Since I have no access to the supporting data behind the Public Citizen numbers, I must logically work with the 65 reported by BPOA. It's when you look at the individual cases you realize that Public Citizen has painted an undeservedly rosy picture of PA Medical Board disciplinary actions against doctors. Of the 65 cases reported by BPOA, 38 were based on disciplinary actions taken by another state. With two exceptions, these doctors neither practiced nor lived in this state. They simply had a license to practice medicine here. In all, that's 55% of the total for doctors who neither lived nor practiced in this state and for which disciplinary actions did not originate in this state. I believe it is misleading for the PA State Board of Medicine to include them in their totals without a notation to that effect. Another 8 doctors, or 12%, were disciplined on felony or criminal charges of one kind or another. Four more, or 6%, were cited for substance, drug, or alcohol abuse. The remaining charges are varied, but here is the bottom line, of 65 disciplinary actions against doctors in 1999, I found only ONE, or 1,5%, that appear to involve primary charges of negligence, malpractice, or incompetence. That one disciplinary case is based on an incident that occurred at a facility operated by the PA Department of Public Welfare. I believe disciplinary actions in this case were the result of a push by elements within state government, perhaps the Office of Attorney General, and without it the disciplinary action would not have taken place.

BPOA data is also available for 2000 and the first quarter of 2001. In addition, the PA State Board of Medicine has a Disciplinary Action Report as part of their Winter 1998/99 newsletter. It covers the period January 28, 1997 through March 24, 1998 and is also available on www.dos.state.pa.us. While not contiguous, the data in total covers a period of nearly 3 1/2 years ending March 31, 2001. When I add it all together here are the results. Of 298 disciplinary actions taken against doctors by the PA State Board of Medicine in that nearly 3 1/2 year period, 138 or 46%, originated in another state. Only THREE, or 1%, appear to involve primary charges of negligence, malpractice, or incompetence against doctors practicing in Pennsylvania. By primary I mean negligence, malpractice, or incompetence charges in and by themselves appear to be the driving force behind disciplinary actions taken by the Board. The case involving incompetence was levied against a physician assistant. The two cases of malpractice/negligence appear to be based on incidents that occurred at Polk Center, an intermediate care facility for people who are mentally retarded. Polk Center is operated by the Pennsylvania Department of Public Welfare. I believe elements within PA State government itself were the driving force behind the disciplinary actions in these cases. In 1999 the PA State Attorney General's Office took the same two physicians to court on other charges. There was also a case of negligence listed in the Board of Medicine Report that I did not count it because case details reveal it stemmed from repeatedly prescribing a controlled substance, a narcotic drug, to an individual the doctor knew to have an addiction problem. The negligence may be technically correct, but it is more appropriately categorized under a "controlled substance" charge, for it is this charge that is the likely driving force behind the case. The incompetence case against the physician assistant took place in a hospital. The respondent caused the death of a patient by erroneous prescription without first consulting a supervisor. While I cannot say for sure that the actions against the physician assistant were not processed as a private citizen complaint through the BPOA complaints office, I think it more likely to have been initiated by the hospital or one or more of the Physician Assistant's Medical Doctor Supervisor's.

Excluding the two actions against doctors at a State run facility, it appears that not a single disciplinary action was taken by the State Board of Medicine against a practicing Pennsylvania based doctor on primary charges of medical negligence or medical malpractice in that nearly 3 1/2 year reporting period referenced. It also appears that over that same period, not a single PA Medical Board Disciplinary action took place based on a private citizen complaint through the BPOA Complaints process. I believe it is likely that over this period, not a single Medical Board hearing took place, the result of a private citizen complaint submitted to the BPOA Complaints office. Yet the BPOA Complaints Office maintains they do indeed process complaints and actions against physicians guilty of incompetence, malpractice, and negligence. If you file a complaint with BPOA against a physician that appears to have merit, they will send an investigator to interview both you and the physician. If the investigator deems your case meritorious, he or she will document the findings, which will then be reviewed by a trained BPOA paralegal. If the paralegal deems your case worthy, it will be forwarded to the DOS Legal Office. So what happens to all the medical complaints against doctors that the BPOA processes? Shortly after I filed my complaint against Dr. Barton, I received a letter telling me BPOA would be unable to provide me with regular status due to the volume of complaints. Yes, I realize they handle complaints for other licensing boards as well. But are we to believe Medicine is not receiving their fair share? Which professions then are registering the bulk of complaints that BPOA must deal with? Is it Barbers? Cosmetologists? Geologists? Landscape architects? What a frivolous waste of money it is for BPOA to send out an investigator and provide paralegal staff for State Board of Medicine cases predestined to be rejected or die of old age before they ever reach a Hearing. The State Board of Medicine is obligated under Pennsylvania law to protect the public health and safety. My experiences and a closer look at Board statistics suggest, however, that in regard to protecting public health and safety, the PA State Board of Medicine's Disciplinary Action Hearing process is a fraudulent operation, a waste of tax payers money, and a slap in the face of victim's and their families conned into believing they will receive some sense of justice through the complaints process.

 

Additional Concerns Beginning October 1999 there has been an increase in the use of non-descriptive and perhaps misleading summaries of State Board of Medicine Disciplinary Actions prepared for release to the public. I presume it is intentional. (1) For example, here's one that reads, "Placed the medical license of -------(name withheld)-------on INACTIVE STATUS until he demonstrates that he can practice with reasonable skill and safety to patients." That's it, there is no more pertinent information provided. That statement leaves the impression that the Board, in a watchdog mode, has found and placed on inactive status, a physician who is not practicing medicine with reasonable skill and safety. However, review of the final order obtained at the Prothonotary's office, reveals the following: The doctor in question suffers from depression, has not seen patients in two years, does not anticipate returning to the practice of medicine for the foreseeable future, and has moved to another state. Furthermore he initiated the action by writing to the Board to request that his license to practice medicine in the Commonwealth of Pennsylvania be placed on inactive status---so much for the watchdog idea. It doesn't appear that this case should be counted as a Disciplinary Action, but it is. (2) Here's another example---"REVOKED --------(name withheld)---------for departing from quality standards of medical practice by performing unnecessary examinations, failing to inform patients of the basis of the examinations, performing examinations in an incompetent and improper manner, and failing to document the reason for and performance of examinations." If this were all new to me, that statement would leave me with the impression of a very picky Board, perhaps acting a bit too harshly on this doctor. Final order documentation reveals what really happened---The doctor was arrested after a female State Police Corporal, working in an undercover capacity, went to the doctor seeking treatment for an alleged earache and the doctor tried to disrobe her. Altogether, there were nine such cases that I could not categorize properly until I obtained further documentation at the Prothonotary's office. Using Final Order documentation I was able to classify all but one case. That case is in limbo because the final order documentation did not contain information as to its origin. However, the doctor has an out-of-state address making it likely to be an out-of-state case. Of the eight cases I was able review more thoroughly, only one appears to be a primary incompetence, malpractice, or negligence case. However, it was one of the Polk Center cases and the disciplinary action was likely pushed from within Pa State government. It appears none of the cases were likely to have been processed through the BPOA Complaints Office.

Another concern revolves around the numbers of Disciplinary Actions the Board of Medicine is sending each year to the Federation of State Medical Boards (FSMB). The health research group Public Citizen uses those figures to compile a national report ranking state boards by the extent to which they are taking serious disciplinary actions against doctors. Public Citizen makes the presumption that "patients are being injured or killed more often in states with poor doctor disciplinary records than in states with consistent top performances." For the year 1999, the most recent Public Citizen Report, the Board reported 97 Disciplinary cases to FSMB, but BPOA Release Disciplinary Actions for the State Board of Medicine lists only 65. At the very least this is sloppy bookkeeping, at worst it is deceit. If the latter figure is correct, the motivation might be to hide the fact the State Board of Medicine's real record on taking Disciplinary Actions against doctors is much worse than the Public Citizen's ranking indicates. Unless most other state medical boards are playing the same charade with out-of-state cases, Public Citizen has ranked Pennsylvania higher than it deserves to be. If you use the new figure of 65 Disciplinary Actions against Doctors, and remove the 38 Disciplinary Actions that originated in other states, we are left with 27 Disciplinary Actions against practicing Pennsylvania doctors initiated by the PA State Board of Medicine in 1999. In regards to the Public Citizen ranking for 1999, that reduces Pennsylvania's number of disciplinary actions per 1000 doctors from 2.55 to .71. In terms of ranking Pennsylvania drops from 36th to 51st and DEAD LAST.

Pennsylvania State Board of Osteopathic Medicine The PA State Board of Osteopathic Medicine is a bit more difficult to evaluate because there are fewer members and Public Citizen does not provide a ranking for them. Nonetheless, we can look at their numbers in a relative sense and come up with a general evaluation. Like the State Board of Medicine, The State Board of Osteopathic Medicine issued a newsletter (Spring 1999) in which they reported 37 disciplinary actions against osteopathic physicians. The reporting period covered from January 10, 1997 through December 9,1998. Since January 1, 1999 through March 31, 2001, summaries of disciplinary actions have been reported through BPOA releases. Adding it together the State Board of Osteopathic Medicine is credited with 80 disciplinary actions, of which 39 or 49% originated in another state. Of the 39 out-of-state cases, 32 had out-of-state addresses. Of the 80 cases, only three appear to be primary malpractice/negligence driven cases originating in this state. That gives us 3 or 4% of the total cases involving primary malpractice and/or negligence driven cases over a period of more than 4 years, a marginal improvement over the State Board of Medicine. One of the cases, based on incidents that occurred at Polk Center, was likely pushed from within state government. In addition to the disciplinary action, the doctor also lost his job. In the other two cases, both doctors received a slap on the wrist, with small fines and assigned probationary classes to attend even though a patient died as a result of malpractice in one case. It appears that given a choice, the Osteopathic Board will impose stiffer sanctions if a doctor commits mail fraud or sexual misconduct than when a patient dies due to the doctor's negligence.

CONCLUSION

My conclusion is that any interest the PA State Board of Medicine has in protecting the public health and safety is secondary to protecting the interests of doctors. The Board will take action if a doctor violates a government regulation (FDA, Medicare, IRS etc.), commits a crime, has a serious drug-related problem, or commits malpractice/negligence at a state-run facility. Why? Because they have to, they have no choice in the matter. The agencies behind the violated laws and regulations will not tolerate anything less. However, when it comes to prosecuting primary incompetence, malpractice and negligence cases through the BPOA Complaints office, the largest potential source of such charges, it is a different matter entirely, despite the mandate to protect the public health and safety. Obviously no one is enforcing the law. The State Board of Medicine's record speaks for itself. The governor appoints board members.

It was no surprise when I found out doctors make up the majority of members on both the PA State Board of Medicine and the PA State Board of Osteopathic Medicine. They won't testify against other doctors in malpractice/negligence cases and they appear to be reluctant to take serious disciplinary action against other doctors when they control the State Boards of Medicine. This appears to be another one of those situations best described as the "fox guarding the hen house." Perhaps it's a story you've heard before. The public elects the official to do a good job of administering. The public official appoints members of special interest groups to positions of power, perhaps to repay campaign debts or whatever. The special interest groups use their newly acquired power to promote their own self-interests at the expense of the public, the very people paying for it all. Of course, I can't prove it, but from what I've learned so far, it doesn't seem like a giant step to get there. The first step to improving this situation is to legislate staff (advisory) positions for doctors and nurses on the PA State Board of Medicine and place decision making powers in the hands of professional managers and representatives of consumer interest groups interested in protecting the health and safety of the public, as the Board is mandated to do.

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