- Email: [email protected]
Tort Reform Is Associated with More Medical Board Complaints and Disciplinary Actions
Tort Reform Is Associated with More Medical Board Complaints and Disciplinary Actions Ronald M Stewart, MD, FACS, Joseph D Love, DO, FACS, Lisa A Rocheleau, JD, Kenneth R Sirinek, MD, FACS Previous reports have confirmed that comprehensive tort reform in Texas (enacted in 2003) was associated with fewer lawsuits and less litigation-associated cost. We hypothesized that complaints to the Texas Medical Board (TMB) increased after tort reform. STUDY DESIGN: To test this hypothesis, we compared complaints, investigations, disciplinary actions, and penalties against physicians before and after comprehensive state tort reform measures were adopted. Data were obtained from the TMB for a 15-year period (1996 to 2010). RESULTS: When comparing the period before tort reform (1996 to 2002) with the period after tort reform (2004 to 2010), TMB complaints increased 13%; investigations opened increased 33%, disciplinary actions increased 96%, license revocations or surrenders increased 47%, and financial penalties increased 367%. All of these increases were statistically significant (p ⱕ 0.01). CONCLUSIONS: After tort reform in Texas, the total number of complaints, investigations, disciplinary decisions, license revocations or surrenders, and financial penalties from the TMB significantly increased. In Texas, tort reform was accompanied by legislatively directed, enhanced oversight and activity of the authority (TMB) charged with regulation of the medical profession. (J Am Coll Surg 2012;214:567–573. © 2012 by the American College of Surgeons) BACKGROUND:
The cost of medical malpractice premiums has led to health care concerns in many areas of the United States. Several states have passed tort reform legislation in an effort to mitigate the disparity in health care caused by physician shortages in highrisk specialties and indirect costs associated with the practice of defensive medicine.1-4 We previously reported a 5-fold decrease in the risk of general surgical malpractice lawsuits after the implementation of comprehensive tort reform in Texas in 2003.5 This drop in malpractice claims and lawsuits temporally followed the implementation of tort reform; however, in our own practice, we anecdotally noticed an increase in the frequency of complaints to and actions by the Texas Medical Board (TMB) after tort reform. To determine whether our anecdotal hypothesis was correct, we obtained data from the TMB from 1996 to 2010 related to complaints and disciplinary actions against physicians. We hypothesized that the number of complaints to the State Medical
Board had increased after tort reform. To test this hypothesis, in this article, we compare complaints, investigations, disciplinary actions, and penalties against physicians before and after comprehensive state tort reform measures were adopted.
METHODS The Texas medical board
The study was performed using publicly accessible data from the TMB and the United States Census. The TMB is the statutorily directed authority that regulates the practice of medicine in Texas. The TMB’s mission is to protect and enhance the public’s health, safety, and welfare by establishing and maintaining standards used to regulate the practice of medicine with the aim of ensuring quality health care for the citizens of Texas.6 This mission is accomplished through a combination of licensure, disciplinary actions, and professional and public education. The TMB’s stated belief is that the public and the medical profession are best served by “a regulatory system that is firm, fair and focused . . . Safeguarding the public through professional accountability.”6 The Board’s statutory authority is based on 18 chapters of the Occupations Code. Agency statutes have undergone major revisions in recent legislative sessions. In 2003, the 78th Legislature passed comprehensive tort reform inTexas (House Bill 4).7 In the same legislative session, Senate Bill 1048 provided statutory reinforcement and strengthening of the TMB. Concomitant with
Disclosure Information: Nothing to disclose. Presented at the Southern Surgical Association 123rd Annual Meeting, Hot Springs, VA, December 2011. Received December 17, 2011; Accepted December 20, 2011. From the Department of Surgery, University of Texas Health Science Center at San Antonio (Stewart, Love, Sirinek); University Hospital (Stewart, Love, Sirinek); and Boone & Rocheleau (Rocheleau), San Antonio, TX. Correspondence address: Ronald M Stewart, MD, Department of Surgery, University of Texas Health Science Center at San Antonio, 7703 Floyd Curl Dr, San Antonio, TX 78229. email: [email protected]
© 2012 by the American College of Surgeons Published by Elsevier Inc.
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Table 1. Pretort Reform Period Data Normalized for Changes in Physician Population over Time (1996 to 2002) Year
Total physicians/100,000 population, n Total complaints/1,000 physicians, n Investigations opened/1,000 physicians, n Disciplinary decisions/1,000 physicians, n Revocations or surrender/1,000 physicians, n Total penalty value/1,000 physicians, $
1996
1997
1998
1999
2000
2001
2002
160 NA NA 5.4 0.69 2,374
162 NA NA 4.2 0.54 3,305
164 NA NA 4.7 0.37 3,078
165 109 34 3.0 0.21 4,729
162 130 41 3.3 0.56 2,922
164 133 38 3.0 0.43 1,711
169 141 46 5.1 1.01 4,785
Data are not available for complaints and investigations opened 1996 to 1998.
enhanced comprehensive tort reform, there was increased support and direction provided to the TMB. The TMB maintains detailed data with respect to physician demographics, complaints, compliance, litigation, and enforcement.9,10 These data sets are publicly accessible electronically from a time span of January 1999 to December 2010.TheTMB supplied archival data spanning back to 1996 for the following variables: number of in-state physicians, total disciplinary decisions, license revocations or surrenders, and board financial penalties.
correction for nominal variables. Analysis of the financial data was performed using an unpaired Student’s t-test and the nonparametric unpaired Mann-Whitney ranked sum test. Data are displayed as the annual mean ⫾ SEM. Relative risk is displayed with 95% CI. Statistical analyses were performed using AnalystSoft, StatPlus:mac - statistical analysis program for Mac OS v. 2009, Microsoft Excel, and JavaStat – 2-way Contingency Table Analysis.11 Differences were considered statistically significant if the p value was ⬍ 0.05.
Data source and analysis
RESULTS When comparing the period after tort reform with the period before tort reform, Medical Board complaints against physicians increased 13%; investigations opened increased 33%, disciplinary actions increased 96%, license revocations or surrenders increased 47%, and financial penalties increased 367%. All of these increases were statistically significant (p ⱕ 0.01). The data from the pre- and post-tort reform periods are displayed in Tables 1 and 2. The number of in-state, licensed physicians increased each year throughout the study period even when normalized for increases in Texas population. The increases in complaints, investigations, disciplinary actions, revocation of licenses, and financial penalties persist when normalized for the annual increases in the number of physicians in Texas. Mean annual event rates normalized per 1,000 physicians in the post-tort reform period compared with the pretort reform are graphically displayed in Figures 1 to 5. Figure 1 demonstrates a significant increase in complaints between the two periods. Figure 2 displays an increase in the total number of investigations opened
Data tables with respect to the number of physicians practicing in Texas, complaints, investigations opened, disciplinary decisions, license revocations or surrenders, and annual total financial penalties were retrieved. These data sets were translated into an electronic spreadsheet, Microsoft Excel 2011 for Macintosh. Enforcement actions were analyzed by year and were normalized per 1,000 instate licensed physicians (event/total number of in-state licensed physicians/1,000) for each year using the midyear, in-state physician demographic report. Where data were available, the study period was from January 1, 1996 until December 31, 2010, and from 1999 to 2010 for the variables for which archival data were not available. Comprehensive tort reform was implemented mid-year in 2003. The 2 periods before (January 1996 to December 2002) and after 2003 (January 2004 to December 2010) were used as pretort reform and post-tort reform periods. Relative risks with 95% confidence intervals were calculated, using tort reform as a risk factor for board actions. Nonparametric data were analyzed using a chi-square with Yates’
Table 2. Post-Tort Reform Period Data Normalized for Changes in Physician Population Over Time (2003 to 2010) Year
Total physicians/100,000 population, n Total complaints/1,000 physicians, n Investigations opened/1,000 physicians, n Disciplinary decisions/1,000 physicians, n Revocations or surrender/1,000 physicians, n Total penalty value/1,000 physicians, $
2004
177 153 46 6.4 0.83 10,897
Table excludes a single penalty to one physician in 2005 of $845,000.
2005
179 147 53 7.4 0.78 14,552
2006
180 123 46 7.9 0.97 11,433
2007
184 157 57 7.1 0.61 11,889
2008
187 143 57 7.7 0.57 11,174
2009
190 148 58 8.7 0.72 11,596
2010
194 141 51 11.0 1.15 14,853
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Figure 1. Total number of complaints per 1,000 licensed, in-state physicians increased in the post-tort reform period (1999 to 2010).
after implementation of tort reform. There was an increase in the number of disciplinary actions after tort reform (Fig. 3) as well as in license revocations or surrenders after tort reform (Fig. 4). Finally, there was an increase in financial penalties assessed by the TMB after tort reform (Fig. 5). The financial data for the year 2005 are skewed due to a penalty of $845,000 assessed to a single physician.The data for 2005 were analyzed with and without this penalty.Total penalties for 2005 including and excluding the penalty, respectively, were $1,442,354 vs $597,354 ($35,137 vs $14,552/1,000 physicians). Although the post-tort reform mean is changed by excluding this one penalty, there is no difference in the statistical analysis (p ⱕ 0.01) with or without inclusion of the outlier (unpaired t-test and Mann-Whitney U test). Considering tort reform as a risk factor, the relative risk change is graphically displayed in Figure 6. The relative risk of a complaint, investigation, disciplinary action, or revocation or surrender of a license was greater after tort reform.
Figure 3. The number of disciplinary actions per 1,000 licensed, in-state physicians significantly increased in the period after tort reform (1996 to 2010).
Figure 2. The total number of investigations per 1,000 licensed in-state physicians increased in the post-tort reform period (1999 to 2010).
DISCUSSION Key findings
In this report we have attempted to paint an accurate description of the landscape before and after comprehensive tort reform in Texas. Our data show that complaints filed to the TMB have increased. Additionally, the TMB has been significantly more active with respect to investigations opened, disciplinary actions, and penalties.The increase in Board action persists after adjusting for the increased number of in-state, licensed physicians and the increased number of complaints. Limitations
This report has limitations that should be considered in interpreting these data. Complaints and Board actions clearly increased in the period after tort reform; however, these data, from a cross-
Figure 4. A significantly greater number of physicians lost or surrendered their license in the post-tort reform period (1996 to 2010).
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Figure 5. Total penalties levied by the board increased significantly between the two periods (1996 to 2010).
sectional, prospectively maintained database, which was retrospectively reviewed, do not show causation.There are many other factors that may have occurred concomitantly. Some potential factors include increased vigilance by consumers and greater access to information via the Internet. Data from as far away as the United Kingdom’s General Medical Council show an increase in public reporting over the past 3 years.12 Another possibility is that the increase in numbers of physicians in the state has been accompanied by an increase in physicians with impairment or other problems, although if this were the case, one would expect a more proportionate increase in complaints to Board actions. More work would be needed to sort out the impact of these other potential factors or definitively determine causation, and regardless of cause, there have been significant increases in complaints and Board actions between the two time periods. Although these other factors may play a role, the principal change in Board activity is most likely driven by the legislative change in 2003 (SB 104).The same legislature that passed tort reform intentionally strengthened the TMB and directed it to increase its oversight and disciplinary authority.8 Those outside and inside Texas should consider this when interpreting the data in our report. In other words, the increases in TMB actions may simply reflect the way the system was intended to function by the Texas legislature, and may not be a natural consequence of tort reform. Texas passed tort reform in 2003 with House Bill 47 and Proposition 12,13 but it also passed Senate Bill 104,8 which provided more resources and directed increased vigilance from the TMB. Tort reform and enforcement from the TMB
In general, it is probably true that many Texans believe that the TMB protects physicians, while many Texan physicians believe the TMB is overzealous in its enforcement.6 In a previous publication, we described our belief that tort reform has been beneficial for both Texas surgeons and their
Figure 6. The relative risk of a Texas Medical Board complaint, action, and loss or surrender of license all increased between the study periods (1999 to 2010).
patients.5 Specifically, we believe that comprehensive tort reform in Texas provided a needed framework to meet the goals of improving quality, access, and reducing cost.5 As the authority regulating the profession, the TMB also plays an important role in helping achieve these goals. As the body responsible for protecting and enhancing the public’s health, safety, and welfare by establishing and maintaining regulatory standards for the practice of medicine, the TMB is often left to balance competing interests and priorities. The Board’s goal of safeguarding the public through professional accountability is important and necessary, but difficult. In the post-tort reform period, the TMB was tasked with increased oversight of the practice of medicine, and our data demonstrate increased frequency of disciplinary actions and penalties against Texas physicians during this time period. Many of the same criticisms often noted about the tort system have been levied against the processes used by the Board, with additional concerns that physician defendants may have fewer protections compared with those afforded in the courtroom.14-17 Medical Board penalties may also not be covered under traditional professional liability coverage, so it is not surprising that these issues have been vigorously debated in Texas.13-16 The increased penalties, disciplinary actions, and process concerns are real; however, a simple “apples to oranges” comparison puts the financial benefits of tort reform vs the financial risks of a more active TMB into sharp perspective. The total unadjusted financial penalties assessed by the TMB in the 7 years after tort reform were roughly $4.7 million. The total unadjusted liability expense (does not include legal defense fees) to the Department of Surgery at the University of Texas Health Science Center at San Antonio in the 7 years leading up to
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tort reform was approximately $4.8 million. In other words, during identical time intervals, the pretort reform liability cost from a single, modest sized, academic department of surgery was greater than the total statewide dollar amount of penalties assessed by the TMB after tort reform. Regardless of one’s perspective on these issues, it is clear that increased oversight authority also comes with an increased responsibility of fairness, prudence, and consistency from the Board. Physicians, elected representatives, and the TMB need to be unified in the goal of seeing that the Board functions correctly to protect the public interest. The 2011 Texas Legislature, working with physician stakeholder groups and the TMB, addressed some of these concerns with statutory changes to severalTMB processes (HB 680).18 These included addition of a 7-year statute of limitations period for those making complaints, eliminating submission of anonymous complaints; mandatory notification to the physician of the names and addresses of complaints filed by third party payors, insurance agents, or pharmaceutical companies; increasing the time available to review complaints; and addition of some procedural protections with respect to the handling of board conferences (informal settlement conferences). For administrative and lesser violations, remedial plans, which are not considered disciplinary, were added. Last, we emphasize that approximately two-thirds of all board complaints come from patients or their family members. These grievances are usually filed when communication fails. Efforts to improve and maintain effective doctorpatient communication to prevent complaints from escalating to the level of the Medical Board are worthwhile patient care and risk management initiatives.19 Improved doctor-patient communication leads to fewer malpractice claims and fewer complaints to the state medical board, and is better for both patient and physician.
CONCLUSIONS After tort reform in Texas, the total number of complaints, investigations, disciplinary decisions, license revocations or surrenders, and financial penalties from theTMB significantly increased. In Texas, tort reform was accompanied by legislatively directed, enhanced oversight and activity of the authority (TMB) charged with the regulation of the medical profession. Author Contributions
Study conception and design: Sirinek, Stewart, Rocheleau Acquisition of data: Stewart, Rocheleau, Sirinek Analysis and interpretation of data: Stewart, Rocheleau, Sirinek, Love
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Drafting of manuscript: Stewart, Love, Sirinek Critical revision: Stewart, Rocheleau, Sirinek, Love
REFERENCES 1. Conde C, Fagan D. Prop 12 payoff. Tex Med 2007;103:18–24. 2. Hutchison KB. Texas liability reform an example for the nation. Tex Med 2006;102:5–6. 3. Nixon J. Why doctors are heading for Texas. Wall Street Journal. May 17, 2008. 4. Orosco RK, Talamini J, Chang DC, Talamini MA. Patterns and predictors of settlement amounts from surgical malpractice claims in the United States, 1990-2006. J Am Coll Surg 2011; 213:S107–S1088. 5. Stewart RM, Geoghegan K, Myers JG, et al. Malpractice risk and cost are significantly reduced after tort reform. J Am Coll Surg 2011;212:463–467; discussion 7–9. 6. Texas Medical Board. TMB Strategic Plans. Austin, TX: Texas Medical Board; 2011 [updated May 2011]. Available at: http:// www.tmb.state.tx.us/agency/stratplan.php. Accessed November 25, 2011. 7. HB 4, Texas Legislature (2003). Available at: http://www.legis. state.tx.us/BillLookup/Text.aspx?LegSess⫽78R&Bill⫽HB4. Accessed November 26, 2011. 8. SB 104, Texas Legislature, 78(R) Sess. (2003). Available at: http://www.legis.state.tx.us/BillLookup/Text.aspx?LegSess⫽ 78R&Bill⫽SB104. Accessed November 26, 2011. 9. Texas Medical Board. Enforcement Statistics. Austin, TX: Texas Medical Board; 2011 [updated May 2011]. Available at: http:// www.tmb.state.tx.us/agency/statistics/enforce/enforce.php. Accessed November 25, 2011. 10. Texas Medical Board. Physician Demographic Information. Austin,TX:Texas Medical Board; 2011 [updated May 2011]. Available at: http://www.tmb.state.tx.us/agency/statistics/demo/docs/ docdemo.php. Accessed November 25, 2011. 11. Pezzullo JC. JavaStat – 2-way Contingency Table Analysis. 2011. Available at: http://statpages.org/ctab2x2.html. Accessed January 2, 2012. 12. General Medical Council. The state of medical education and practice in the UK 2011. Available at: http://www.gmc-uk.org/ State_of_medicine_Final_web.pdf_44213427.pdf. Accessed January 2, 2012. 13. Texas Constitution, Article 3, Section 66. Available at: http://www.statutes.legis.state.tx.us/Docs/CN/htm/CN.3.htm #3.66. Accessed November 26, 2011. 14. Texas Medical Board. Texas Medical Board Outreach Report, Summer 2008. Austin, TX: Texas Medical Board; 2008. Available at: www.tmb.state.tx.us/townhall/2008/Outreach-Report2008.pdf. Accessed November 25, 2011. 15. Falkenberg L. Closer look irks doctors. Houston Chronicle. October 25, 2007. 16. Thornton RG. Texas Medical Board investigations revisited. Baylor University Medical Center Proceedings 2010;23:83–85. 17. Schneider ME. Texas doctors seek medical board reform. Ob Gyn News. January 15, 2005; Sect. 2. 18. HB 680, Schwertner, Charles. 82nd Texas Legislature (2011). Available at: http://www.legis.state.tx.us/BillLookup/Text.aspx? LegSess⫽82R&Bill⫽HB680. Accessed November 26, 2011. 19. Alexander AA. Complaints, grievances, and claims against physicians: does tort reform make a difference? J Healthc Risk Manag 2010;30:32–42.
The cost of medical malpractice premiums has led to health care concerns in many areas of the United States. Several states have passed tort reform legislation in an effort to mitigate the disparity in health care caused by physician shortages in highrisk specialties and indirect costs associated with the practice of defensive medicine.1-4 We previously reported a 5-fold decrease in the risk of general surgical malpractice lawsuits after the implementation of comprehensive tort reform in Texas in 2003.5 This drop in malpractice claims and lawsuits temporally followed the implementation of tort reform; however, in our own practice, we anecdotally noticed an increase in the frequency of complaints to and actions by the Texas Medical Board (TMB) after tort reform. To determine whether our anecdotal hypothesis was correct, we obtained data from the TMB from 1996 to 2010 related to complaints and disciplinary actions against physicians. We hypothesized that the number of complaints to the State Medical
Board had increased after tort reform. To test this hypothesis, in this article, we compare complaints, investigations, disciplinary actions, and penalties against physicians before and after comprehensive state tort reform measures were adopted.
METHODS The Texas medical board
The study was performed using publicly accessible data from the TMB and the United States Census. The TMB is the statutorily directed authority that regulates the practice of medicine in Texas. The TMB’s mission is to protect and enhance the public’s health, safety, and welfare by establishing and maintaining standards used to regulate the practice of medicine with the aim of ensuring quality health care for the citizens of Texas.6 This mission is accomplished through a combination of licensure, disciplinary actions, and professional and public education. The TMB’s stated belief is that the public and the medical profession are best served by “a regulatory system that is firm, fair and focused . . . Safeguarding the public through professional accountability.”6 The Board’s statutory authority is based on 18 chapters of the Occupations Code. Agency statutes have undergone major revisions in recent legislative sessions. In 2003, the 78th Legislature passed comprehensive tort reform inTexas (House Bill 4).7 In the same legislative session, Senate Bill 1048 provided statutory reinforcement and strengthening of the TMB. Concomitant with
Disclosure Information: Nothing to disclose. Presented at the Southern Surgical Association 123rd Annual Meeting, Hot Springs, VA, December 2011. Received December 17, 2011; Accepted December 20, 2011. From the Department of Surgery, University of Texas Health Science Center at San Antonio (Stewart, Love, Sirinek); University Hospital (Stewart, Love, Sirinek); and Boone & Rocheleau (Rocheleau), San Antonio, TX. Correspondence address: Ronald M Stewart, MD, Department of Surgery, University of Texas Health Science Center at San Antonio, 7703 Floyd Curl Dr, San Antonio, TX 78229. email: [email protected]
© 2012 by the American College of Surgeons Published by Elsevier Inc.
567
ISSN 1072-7515/12/$36.00 doi:10.1016/j.jamcollsurg.2011.12.020
568
Stewart et al
Medical Board Actions after Tort Reform
J Am Coll Surg
Table 1. Pretort Reform Period Data Normalized for Changes in Physician Population over Time (1996 to 2002) Year
Total physicians/100,000 population, n Total complaints/1,000 physicians, n Investigations opened/1,000 physicians, n Disciplinary decisions/1,000 physicians, n Revocations or surrender/1,000 physicians, n Total penalty value/1,000 physicians, $
1996
1997
1998
1999
2000
2001
2002
160 NA NA 5.4 0.69 2,374
162 NA NA 4.2 0.54 3,305
164 NA NA 4.7 0.37 3,078
165 109 34 3.0 0.21 4,729
162 130 41 3.3 0.56 2,922
164 133 38 3.0 0.43 1,711
169 141 46 5.1 1.01 4,785
Data are not available for complaints and investigations opened 1996 to 1998.
enhanced comprehensive tort reform, there was increased support and direction provided to the TMB. The TMB maintains detailed data with respect to physician demographics, complaints, compliance, litigation, and enforcement.9,10 These data sets are publicly accessible electronically from a time span of January 1999 to December 2010.TheTMB supplied archival data spanning back to 1996 for the following variables: number of in-state physicians, total disciplinary decisions, license revocations or surrenders, and board financial penalties.
correction for nominal variables. Analysis of the financial data was performed using an unpaired Student’s t-test and the nonparametric unpaired Mann-Whitney ranked sum test. Data are displayed as the annual mean ⫾ SEM. Relative risk is displayed with 95% CI. Statistical analyses were performed using AnalystSoft, StatPlus:mac - statistical analysis program for Mac OS v. 2009, Microsoft Excel, and JavaStat – 2-way Contingency Table Analysis.11 Differences were considered statistically significant if the p value was ⬍ 0.05.
Data source and analysis
RESULTS When comparing the period after tort reform with the period before tort reform, Medical Board complaints against physicians increased 13%; investigations opened increased 33%, disciplinary actions increased 96%, license revocations or surrenders increased 47%, and financial penalties increased 367%. All of these increases were statistically significant (p ⱕ 0.01). The data from the pre- and post-tort reform periods are displayed in Tables 1 and 2. The number of in-state, licensed physicians increased each year throughout the study period even when normalized for increases in Texas population. The increases in complaints, investigations, disciplinary actions, revocation of licenses, and financial penalties persist when normalized for the annual increases in the number of physicians in Texas. Mean annual event rates normalized per 1,000 physicians in the post-tort reform period compared with the pretort reform are graphically displayed in Figures 1 to 5. Figure 1 demonstrates a significant increase in complaints between the two periods. Figure 2 displays an increase in the total number of investigations opened
Data tables with respect to the number of physicians practicing in Texas, complaints, investigations opened, disciplinary decisions, license revocations or surrenders, and annual total financial penalties were retrieved. These data sets were translated into an electronic spreadsheet, Microsoft Excel 2011 for Macintosh. Enforcement actions were analyzed by year and were normalized per 1,000 instate licensed physicians (event/total number of in-state licensed physicians/1,000) for each year using the midyear, in-state physician demographic report. Where data were available, the study period was from January 1, 1996 until December 31, 2010, and from 1999 to 2010 for the variables for which archival data were not available. Comprehensive tort reform was implemented mid-year in 2003. The 2 periods before (January 1996 to December 2002) and after 2003 (January 2004 to December 2010) were used as pretort reform and post-tort reform periods. Relative risks with 95% confidence intervals were calculated, using tort reform as a risk factor for board actions. Nonparametric data were analyzed using a chi-square with Yates’
Table 2. Post-Tort Reform Period Data Normalized for Changes in Physician Population Over Time (2003 to 2010) Year
Total physicians/100,000 population, n Total complaints/1,000 physicians, n Investigations opened/1,000 physicians, n Disciplinary decisions/1,000 physicians, n Revocations or surrender/1,000 physicians, n Total penalty value/1,000 physicians, $
2004
177 153 46 6.4 0.83 10,897
Table excludes a single penalty to one physician in 2005 of $845,000.
2005
179 147 53 7.4 0.78 14,552
2006
180 123 46 7.9 0.97 11,433
2007
184 157 57 7.1 0.61 11,889
2008
187 143 57 7.7 0.57 11,174
2009
190 148 58 8.7 0.72 11,596
2010
194 141 51 11.0 1.15 14,853
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Figure 1. Total number of complaints per 1,000 licensed, in-state physicians increased in the post-tort reform period (1999 to 2010).
after implementation of tort reform. There was an increase in the number of disciplinary actions after tort reform (Fig. 3) as well as in license revocations or surrenders after tort reform (Fig. 4). Finally, there was an increase in financial penalties assessed by the TMB after tort reform (Fig. 5). The financial data for the year 2005 are skewed due to a penalty of $845,000 assessed to a single physician.The data for 2005 were analyzed with and without this penalty.Total penalties for 2005 including and excluding the penalty, respectively, were $1,442,354 vs $597,354 ($35,137 vs $14,552/1,000 physicians). Although the post-tort reform mean is changed by excluding this one penalty, there is no difference in the statistical analysis (p ⱕ 0.01) with or without inclusion of the outlier (unpaired t-test and Mann-Whitney U test). Considering tort reform as a risk factor, the relative risk change is graphically displayed in Figure 6. The relative risk of a complaint, investigation, disciplinary action, or revocation or surrender of a license was greater after tort reform.
Figure 3. The number of disciplinary actions per 1,000 licensed, in-state physicians significantly increased in the period after tort reform (1996 to 2010).
Figure 2. The total number of investigations per 1,000 licensed in-state physicians increased in the post-tort reform period (1999 to 2010).
DISCUSSION Key findings
In this report we have attempted to paint an accurate description of the landscape before and after comprehensive tort reform in Texas. Our data show that complaints filed to the TMB have increased. Additionally, the TMB has been significantly more active with respect to investigations opened, disciplinary actions, and penalties.The increase in Board action persists after adjusting for the increased number of in-state, licensed physicians and the increased number of complaints. Limitations
This report has limitations that should be considered in interpreting these data. Complaints and Board actions clearly increased in the period after tort reform; however, these data, from a cross-
Figure 4. A significantly greater number of physicians lost or surrendered their license in the post-tort reform period (1996 to 2010).
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Figure 5. Total penalties levied by the board increased significantly between the two periods (1996 to 2010).
sectional, prospectively maintained database, which was retrospectively reviewed, do not show causation.There are many other factors that may have occurred concomitantly. Some potential factors include increased vigilance by consumers and greater access to information via the Internet. Data from as far away as the United Kingdom’s General Medical Council show an increase in public reporting over the past 3 years.12 Another possibility is that the increase in numbers of physicians in the state has been accompanied by an increase in physicians with impairment or other problems, although if this were the case, one would expect a more proportionate increase in complaints to Board actions. More work would be needed to sort out the impact of these other potential factors or definitively determine causation, and regardless of cause, there have been significant increases in complaints and Board actions between the two time periods. Although these other factors may play a role, the principal change in Board activity is most likely driven by the legislative change in 2003 (SB 104).The same legislature that passed tort reform intentionally strengthened the TMB and directed it to increase its oversight and disciplinary authority.8 Those outside and inside Texas should consider this when interpreting the data in our report. In other words, the increases in TMB actions may simply reflect the way the system was intended to function by the Texas legislature, and may not be a natural consequence of tort reform. Texas passed tort reform in 2003 with House Bill 47 and Proposition 12,13 but it also passed Senate Bill 104,8 which provided more resources and directed increased vigilance from the TMB. Tort reform and enforcement from the TMB
In general, it is probably true that many Texans believe that the TMB protects physicians, while many Texan physicians believe the TMB is overzealous in its enforcement.6 In a previous publication, we described our belief that tort reform has been beneficial for both Texas surgeons and their
Figure 6. The relative risk of a Texas Medical Board complaint, action, and loss or surrender of license all increased between the study periods (1999 to 2010).
patients.5 Specifically, we believe that comprehensive tort reform in Texas provided a needed framework to meet the goals of improving quality, access, and reducing cost.5 As the authority regulating the profession, the TMB also plays an important role in helping achieve these goals. As the body responsible for protecting and enhancing the public’s health, safety, and welfare by establishing and maintaining regulatory standards for the practice of medicine, the TMB is often left to balance competing interests and priorities. The Board’s goal of safeguarding the public through professional accountability is important and necessary, but difficult. In the post-tort reform period, the TMB was tasked with increased oversight of the practice of medicine, and our data demonstrate increased frequency of disciplinary actions and penalties against Texas physicians during this time period. Many of the same criticisms often noted about the tort system have been levied against the processes used by the Board, with additional concerns that physician defendants may have fewer protections compared with those afforded in the courtroom.14-17 Medical Board penalties may also not be covered under traditional professional liability coverage, so it is not surprising that these issues have been vigorously debated in Texas.13-16 The increased penalties, disciplinary actions, and process concerns are real; however, a simple “apples to oranges” comparison puts the financial benefits of tort reform vs the financial risks of a more active TMB into sharp perspective. The total unadjusted financial penalties assessed by the TMB in the 7 years after tort reform were roughly $4.7 million. The total unadjusted liability expense (does not include legal defense fees) to the Department of Surgery at the University of Texas Health Science Center at San Antonio in the 7 years leading up to
Vol. 214, No. 4, April 2012
tort reform was approximately $4.8 million. In other words, during identical time intervals, the pretort reform liability cost from a single, modest sized, academic department of surgery was greater than the total statewide dollar amount of penalties assessed by the TMB after tort reform. Regardless of one’s perspective on these issues, it is clear that increased oversight authority also comes with an increased responsibility of fairness, prudence, and consistency from the Board. Physicians, elected representatives, and the TMB need to be unified in the goal of seeing that the Board functions correctly to protect the public interest. The 2011 Texas Legislature, working with physician stakeholder groups and the TMB, addressed some of these concerns with statutory changes to severalTMB processes (HB 680).18 These included addition of a 7-year statute of limitations period for those making complaints, eliminating submission of anonymous complaints; mandatory notification to the physician of the names and addresses of complaints filed by third party payors, insurance agents, or pharmaceutical companies; increasing the time available to review complaints; and addition of some procedural protections with respect to the handling of board conferences (informal settlement conferences). For administrative and lesser violations, remedial plans, which are not considered disciplinary, were added. Last, we emphasize that approximately two-thirds of all board complaints come from patients or their family members. These grievances are usually filed when communication fails. Efforts to improve and maintain effective doctorpatient communication to prevent complaints from escalating to the level of the Medical Board are worthwhile patient care and risk management initiatives.19 Improved doctor-patient communication leads to fewer malpractice claims and fewer complaints to the state medical board, and is better for both patient and physician.
CONCLUSIONS After tort reform in Texas, the total number of complaints, investigations, disciplinary decisions, license revocations or surrenders, and financial penalties from theTMB significantly increased. In Texas, tort reform was accompanied by legislatively directed, enhanced oversight and activity of the authority (TMB) charged with the regulation of the medical profession. Author Contributions
Study conception and design: Sirinek, Stewart, Rocheleau Acquisition of data: Stewart, Rocheleau, Sirinek Analysis and interpretation of data: Stewart, Rocheleau, Sirinek, Love
Stewart et al
Medical Board Actions after Tort Reform
571
Drafting of manuscript: Stewart, Love, Sirinek Critical revision: Stewart, Rocheleau, Sirinek, Love
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