Bad Doctors Do Keep on Practicing

Jim Edwards
12-17-2003

Last May, Dr. Richard Kaul went before the New Jersey Board of Medical Examiners to plead to keep his doctor's license.

Kaul had been convicted in England of negligent manslaughter after a dental patient died under anesthesia. His British license was revoked when he admitted that his "inattention" allowed the patient's blood oxygen to drop low enough to cause brain hypoxia and, finally, cardiac arrest.

But the New Jersey board allowed Kaul to keep his state license if he agreed to a six-month suspension.

Kaul, of Convent Station, N.J., believed the decision was too strict, so he appealed. "If anything, the six-month period of active suspension was lenient," the New Jersey Appellate Division ruled on Dec. 5. The discipline was especially lenient considering that Kaul had lied about the death on his applications to St. Clare's Health System, where Kaul is on staff, and Hackensack University Medical Center, the court noted.

The case, IMO Richard Kaul, M.D., while dramatic, nonetheless typifies the Board of Medical Examiners' attitude toward doctors who harm their patients. The board rarely bans doctors from practicing, even when they kill people, a review of the board's discipline records, dating back to 1972, shows.

In fact, doctors who repeatedly commit malpractice or engage in behavior that could harm patients on multiple occasions are about twice as likely to be allowed to continue practicing than to be banned, the records show.

The survey discovered 290 cases in which doctors are described as repeatedly committing malpractice. In only 90 of those cases -- about one in three -- were the doctors permanently prevented from continuing to practice. In all other cases they were fined, reprimanded or given temporary suspensions, but were allowed to continue working.

The New Jersey Law Journal undertook the study to test a key argument in the debate over the medical malpractice insurance crisis: Whether the medical profession allows bad doctors to continue practicing after they commit malpractice, thus increasing malpractice insurance premiums.

Doctors, who earlier this year nearly succeeded in convincing the state Legislature to cap damages for pain and suffering at $250,000, have contended that the malpractice insurance crisis is caused largely by frivolous suits and jackpot jury awards, not by bad doctors.

The results do not prove specifically that doctors who repeatedly commit malpractice are the cause of multiplying suits and spiraling premiums. Rather, the review indicates that there is evidence to support a longstanding position of the plaintiffs' bar that some bad doctors are allowed to continue practicing despite instances of malpractice.

Whether repeat malpractice offenders are directly linked to spiraling premiums remains unknown because of confidential settlements and the historical refusal of insurance companies to provide breakdowns of payments they make.

Overall, the survey found that since 1972, the New Jersey Board of Medical Examiners has disciplined 800 doctors for activity harmful to patients. About 32 percent of the 3,461 discipline reports issued by the board describe cases in which the board has found that a doctor has harmed a patient.

The numbers are surprisingly low -- only about 26 cases a year. By contrast, 1,650 to 2,000 medical malpractice suits are filed every year, according to the Administrative Office of the Courts. Settlements in such cases are often secret, but the federal National Practitioner Data Bank of Rockville, Md., tracks malpractice insurance payouts. In New Jersey, insurers made 940 malpractice payments in 2001, the most recent year for which figures are available, according to the data bank.

Put simply, the disparity between 940 payments and 26 disciplinary actions means that only about 2.7 percent of malpractice payments result in doctors being disciplined.

THE FAULT IS IN OUR COURTS

So why is discipline so rare?

According to the Medical Society of New Jersey -- the lobbying group that represents doctors and pushed for caps on damages in malpractice cases -- there is a flaw in the tort system that makes malpractice seem more common than it is.

Juries are bad at deciding malpractice cases, the medical society argues, because once they see a patient's injuries their hearts blind them to the medical facts, and they decide for the plaintiffs. This happens most often in cases involving difficult births, where even the slightest problem can leave a child brain-damaged -- what the profession calls "bad baby" cases.

"When a bad baby is brought into court, a jury will willingly overlook the merits of the case and find for the baby regardless," says John Schaffer, a spokesman for the medical society.

By statute, if an insurance company makes a malpractice payment, it is automatically referred to the Board of Medical Examiners, which then reviews the case to decide whether discipline is warranted.

Once the board -- a 21-member panel dominated by doctors -- has heard the evidence, it frequently concludes that despite the jury verdict the doctor did not deviate from the appropriate standard of care.

Hence, it is not the board but the court system that needs fixing, the medical society says.

"The survey results are some of the best proof that the system is broken," says Robert Conroy, a partner at Kern, Augustine, Conroy & Schoppmann in Bridgewater. Conroy is general counsel to the medical society and specializes in defending doctors before the Board of Medical Examiners.

"[The courts] have poor selectivity, there's an inability to discern true medical negligence from lawyers' showmanship," he says. "Here [on the board of medical examiners] you have a blue-ribbon jury. They reach the determination in an overwhelming number of those cases that there was no evidence of gross malpractice or repeated acts of malpractice."

Indeed, according to cases in which that "blue-ribbon" jury has found malpractice or harmful behavior, none of the following fact patterns guarantees a total ban on medical practice:

• Killing a cancer patient with a dose of chemotherapy 10 times the correct strength, at the same time as prescribing antibiotics to which the child was allergic.
• Deliberately dropping a fetus in the trash instead of following proper disposal laws.
• Being convicted as a cocaine dealer.
• Allowing a patient to bleed to death internally in the emergency room as she lay unexamined overnight -- and then filling out the post-mortem paperwork to say she was seen before her death.
• Anesthetizing a patient in an MRI machine and then abandoning him so that he dies when complications go unattended.
• Repeatedly sexually abusing multiple patients.

In those examples, the doctors were allowed to continue practicing. The doctor who killed the cancer patient, for instance, was fined $5,000.

Although the board appears to be charitable toward doctors, Conroy argues that is a misperception. Take, for instance, one of the board's milder punishments, the reprimand. A reprimand has no further official consequence than being a word on a piece of paper in a doctor's state file. Most patients will never inspect those records. At first glance, reprimand seems an almost useless punishment.

Not true, says Conroy. Most hospitals and most managed-care plans automatically ban doctors who have any type of discipline on their record, making it virtually impossible for that doctor to treat patients. "It's a capital sentence. They can no longer to make a living. No one will let them use a hospital practice. Those are 290 cases [in the Law Journal survey] where they have virtually removed that physician from any ability to practice."

TAKING REFUGE ... AND CASH

For the disciplined doctor, however, there is one refuge that will allow them to continue seeing patients -- a private, cash-only practice.

That scenario happened in the case of Dr. William Kellogg. In 1986, the Board of Medical Examiners cited Kellogg for "alleged unnecessary surgery and indiscriminate C.D.S. [controlled dangerous substance] prescribing." The surgery was for cataracts. He was restricted from performing surgeries without the supervision and approval of another doctor and the state Attorney General's Office.

In the early 1990s, Kellogg was again accused of performing unwarranted eye surgeries -- by 37 patients. The board resolved those cases in 1995 when Kellogg's license was revoked and he was fined $140,000.

That did not end Kellogg's career. He went into business as a "technician" at Dr. Joseph Dello Russo's New Jersey Eye Center in Bergenfield, and was then sued for consumer fraud by patients who believed he was a fully licensed doctor. No harm was alleged -- hence the use of a fraud claim as opposed to a malpractice suit. Oral arguments in the case -- on the issue of whether physicians can be sued for consumer fraud -- were heard at the state Supreme Court on Dec. 1 in Macedo v. Russo. Last April, the Board of Medical Examiners reinstated Kellogg's license without restriction.

Attorneys for the Eye Center have previously noted that Kellogg did not operate on anyone and that the plaintiffs claimed mainly that they had been misled.

Kellogg's lawyer, Steven, of Kern Augustine, disputes that his client was treated leniently by the board. "He wound up out of practice close to 10 years before he was allowed to resume. He was required to undergo three years of retraining. I don't know how you equate that length of suspension and that period of retraining with 'they go easy on doctors.'"

"That happens all the time," responds Brian Drazin, president of the Association of Trial Lawyers of America-New Jersey, of the Kellogg case. "The Board of Medical Examiners should look seriously into hospitals' efforts to suspend privileges ... to prevent people who are booted out of a hospital from opening up a private surgery center."

The Law Journal's survey found many doctors with similar career patterns to Kellogg: They are cited for malpractice or subjecting patients to harmful behavior, and are allowed to continue practicing by the Board of Medical Examiners. And then they reappear before the board on new charges of harming patients.

Take Dr. David Bradway, for instance. In 1980 his license was surrendered with prejudice -- meaning he could not practice at all -- based on a variety of allegations regarding his handling of drugs.

Between 1986 and 1988, however, the board gradually restored his license, granting him more and more practice privileges. By November 1997, he was granted an unrestricted license. Two years later, however, after seven patients had died in Bradway's "Ultra-Rapid Detox" drug treatment program in Merchantville, the board put him back on restricted practice, and banned him from drug rehab remedies.

Bradway's attorney, Michael Riley of Riley & Lifrack in Mount Holly, argued that the deaths were statistically acceptable -- thousands of patients were treated -- and a malpractice suit against Bradway was thrown out of court. Unusually, the board of examiners disciplined him anyway.

"These patients had other serious health issues that caused their deaths and it was not related to their procedure. They're dealing with a population that had addiction problems. They had enlarged hearts, different problems that flowed from drug use," Riley says. He declines to comment further.

Like the medical society, Joseph Gorrell -- the lawyer for Kaul, the English doctor convicted of manslaughter -- bridles at the notion that a mere verdict or settlement is proof of malpractice. He says juries are swayed by plaintiffs' injuries, not the facts of a case, regardless of whether the doctor was at fault, and insurance payouts are made for economic reasons, rather than on points of principle.

"Anyone who believes that because a jury finds a doctor liable of malpractice is proof that the case was substantive is a fool. Or doesn't really understand how juries work," says Gorrell, a partner at WolfBlock Brach Eichler in Roseland.

Still, in August, the director of the Division of Consumer Affairs -- the body that oversees the Board of Medical Examiners -- pledged to review the board's work and reform its processes. That review is ongoing.

"We have been concerned about the operation of the board and these concerns prompted us to initiate this review process. Both the medical profession and the Division believe the board can be improved," the director, Reni Erdos, said in a statement.

Interestingly, lawyers on both sides of the bar are unhappy with the board. They have similar criticisms: Its processes are too bureaucratic, it takes too long to make decisions and it does not have enough resources to examine cases in the depth required.

Gorrell and Drazin complain of administrative delays caused by state lawyers employed by the board.

"I don't think the board is invested with sufficient resources to appropriately prosecute investigations and admin actions," says Drazin, of Red Bank's Drazin & Warshaw. "They get themselves into an administrative quagmire."

"They have a cumbersome process," Gorrell agrees. "Sometimes they don't learn about cases right away. It's not a perfect system. It can take several years before that [license removal] occurs."