The
Peer Fear: limitations on the review process.
Jack
McIsaac is no bleeding heart. For the past three decades
he's made a reputation shilling for corporate heavyweights
in the halls of the state Capitol.
But this session, as well as lobbying for his main
client, Pope & Talbot, McIsaac is going to bat for
consumers. And he's doing it without pay.
McIsaac is pushing House Bill 3512, which would require
the Board of Medical Examiners to create a "profile"
of every physician in the state. In addition to details
about education and specialties, the profiles would
contain information about complaints filed with the
board, hospital investigations of possible misconduct,
malpractice payments made by a physician's insurance
company and criminal convictions.
"This is for the benefit of patients or potential patients
who can find out about doctors before an operation,"
McIsaac says.
McIsaac became interested in the issue through Laurel
Thomas, who hired him in 1997 to push for physician
profiles. He decided to continue the fight this session.
Thomas found out about protections for physicians the
hard way. In 1993, a nasty car accident forced her to
undergo neck surgery. She chose Dr. Kim Burchiel, the
head of Oregon Health Sciences University's neurosurgery
department, to perform the operation. "[He] told me
that all went well," Thomas told legislators last session,
when an earlier version of the bill was introduced.
"In fact, the surgery did not go well. You see, the
surgeon accidentally fused the wrong disk."
Thomas told legislators that even though several sets
of X-rays clearly showed the problem, Burchiel failed
to "admit the mistake" for eight months. (Dr. Burchiel
did not return WW's calls.)
Thomas settled a complaint against the hospital in
1995. She says the Board of Medical Examiners
told her privately that it is investigating Burchiel.
But ask the board today and you won't hear anything
about that. A maze of public-records exemptions acts
as a protective barrier that keeps patients' noses out
of their doctors' files.
Under current law, the board will disclose the nature
of a complaint only after it has taken disciplinary
action. This happens following reports of a pattern
of negligence, not merely a single incident. Even then,
the actual complaint, which includes the name of the
complainant and the details of the problem, is kept
confidential.
Malpractice lawsuits are a matter of public record,
but they aren't always a foolproof way to find out about
a particular doctor. For example, Thomas' complaint
doesn't even name the doctor. Instead, it targets the
hospital. Consequently, as far as the public can tell,
Burchiel's record appears clean.
The current law, Thomas says, makes choosing a doctor
"like a game of Russian roulette.... I know it protects
the doctor, but I see nowhere where the patient is protected."
Kathleen Haley, executive director of the medical board,
says the system is a good one. "I've felt that really
what we provide in Oregon is pretty extensive," she
says.
State Rep. Kathy Lowe has a different perspective.
Lowe, the co-sponsor of HB 3512, is a freshman Democrat
from Oregon City. She's also a lawyer, which means her
work history in Oregon is an open book. State law allows
public access to complaints made against lawyers, through
the Oregon State Bar Association. The same goes for
other professionals such as real-estate appraisers and
architects. So why not doctors?
Haley says that doctors are different. "I don't think
people have the same relationship with their doctor
as they do with their lawyer," she says. "Complaints
[against doctors] are more emotionally based. [With
lawyers] it's a business relationship rather than an
intimate medical, personal one."
Lowe, however, sees another difference. "When a physician
makes a mistake,the consequences are catastrophic,"
she says. "People have a right to know about the quality
of their health-care providers."
But opposition from the Oregon Medical Association
and the Board of Medical Examiners has helped prevent
the bill from getting a hearing. "There's a bunker mentality
in the medical profession," McIsaac says.
But Dr. Joseph Emmerich, a former pediatrician, does
not fall into this category. Emmerich became blind following
a heart transplant operation at OHSU. Although he has
no idea whether negligence caused his blindness--he
decided not to pursue a malpractice case because OHSU
is protected by a lawsuit cap--Emmerich doesn't think
doctors deserve so much protection.
"Making information available to the public is a reasonable
thing to do," he says. "I think there's always a suspicion,
and there always will be when the fox is in charge of
the chickens."
The
Peer Fear
The closed files at the Board of Medical
Examiners aren't the only obstacles people in Oregon
face when trying to find out about their doctors.
Nearly 20 years ago, an Astoria doctor named Timothy
Patrick sued seven competing physicians for conspiring
to hurt his business by casting aspersions on his abilities.
The doctors were participating in what is known as a
"peer review" of their colleague. In Patrick's case,
the seven didn't give Patrick a good review. He consequently
filed suit, and the case was decided in his favor, costing
the "Astoria Seven," as they were known, a substantial
sum.
The case chilled such medical critiques in Oregon,
says Jim Kronenberg, associate executive director at
the Oregon Medical Association. "Many physicians began
to refuse to do peer review in the hospitals for fear
they might get in the same situation," he says.
The reluctance to complain about incompetent colleagues
has lessened over the years thanks to the passage of
certain laws and regulations, but Kronenberg says the
fear is still there.
--MO
- - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
Willamette Week | originally
published June 9, 1999
