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 His British license was revoked when he admitted that his "inattention" allowed the patient's blood oxygen to drop low enough to cause brain hypoxia and, finally, cardiac arrest.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.
The case 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.
Jim Edwards in the Dec. 17, 2003 issiue of 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.
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.
Indeed, according to cases in which a 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.
The Law Journal's survey found many doctors 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.
In Texas from Sept. 1, 1990, to Sept. 31, 2002, 51.3 percent of malpractice payouts were caused by 6.5 percent of Texas doctors with two or more medical malpractice claimsFor example, Physician Number 37949, licensed in Texas, settled or lost 13 medical malpractice suits involving improper treatment or improper performance of surgery between 1990 and 1997. Two of the suits involved the same allegation: a foreign body left in the patient during surgery. Damages to this doctor's patients exceeded $2 million. This doctor has never been disciplined by authorities in Texas.
Or how about the New York doctor who was so proud of his work that he carved his initials into his clients abdomen. Four months later he was still practicing medicine!
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