Medical Secrecy and Medical
Mistakes
What We Can Do To
Strengthen Regulation Of Our Doctors
By Deborah Markowitz,
Secretary of State
We are lucky here in Vermont to
be served by a highly professional and talented medical community.
However, while the vast majority of our physicians are competent and
dedicated, Vermonters have a right to be certain that doctors who
violate professional standards - doctors who may endanger the health and
well being of those entrusted to their care - are not permitted to
practice. This is the year the legislature must
decide how Vermont will oversee the regulation of our doctors. The
current law is scheduled to expire at the end of the
year.
The Medical Practice Board is
made up of committed and caring members and staff. Nevertheless, there
are legal and structural reforms that should increase public protection
and help restore public confidence in the oversight of our doctors.
Increase Oversight: Since 1990 the Medical Practice Board has
been the only regulated profession to be freestanding and independent.
Today the board remains semi-independent with my office having some limited oversight, which has proved to be ineffective,
inefficient and costly. There are 40 professions currently under
the review of the Secretary of State’s office, while the Supreme Court
oversees lawyers, and the Department of Education oversees teachers.
Treating the medical profession differently than every other
professional group in Vermont serves no clear public purpose. On the
other hand, bringing the Medical Practice Board fully back under the
Office of the Secretary of State (where it was before becoming
independent in 1990) or another state agency should help restore public
confidence in the board and increase Board
accountability.Increase Access to Information: A
regular complaint about the Medical Practice Board is that their process
is cloaked in secrecy. Indeed, state law strictly limits the public
information available on the professional complaint history of the
doctors who treat us. Even though most complaints are determined not to
rise to the level of unprofessional conduct, the fact that there has
been a complaint is important consumer information. Most other states
make this information public. This year there is a proposed bill, H.227,
which would provide to the public profiles on Vermont physicians’
medical malpractice history and professional discipline. This
legislation is a good start.Establish A Better Standard for
Unprofessional Conduct: Vermont law provides a number of
reasons for disciplining a doctor. Despite these standards, during the
past five years only five doctors have had their licenses revoked. This
is because the present standard for finding unprofessional conduct for
skill in treatment of the patient is "gross or repeated failure to
uphold the standard of care." The Vermont Supreme Court defines this as
the failure to exercise even the slightest degree of care and an
indifference to the duty owed the patient. The problem is that even the
most dangerous physician may care about his or her patient.
This year the legislature will
have before it an important alternative. It is a change that would allow
action to be taken against a physician for failure to use the care that
is commonly exercised by an ordinary professional engaged in similar
practice, under similar conditions. This change would empower our
licensing boards to better protect the public from incompetent
practitioners and to address a problem physician earlier in his or her
career.Improve Our Decisionmaking: Right now, decisions about a
doctor’s competency are primarily made by other doctors. (The Medical
Practice Board has 14 members. Only three are "public" members.) While
the Board is highly committed - and prosecutorial decisions are made by
the Attorney General’s office - the degree of empathy that exists among
members of a profession can result in leniency when it comes to the
discipline imposed. While it makes sense for the Medical Board to
continue to investigate and prosecute, with the Attorney General, cases
they deem to be meritorious, the final decision about whether there has
been unprofessional conduct - and the nature of the discipline - should
be made by a law-trained judge. This would better protect the health and
welfare of the public. This is a system we have adopted in Vermont for
every profession recognized since 1997. It is a system that has worked
well to protect the public.
These important issues will be
before the legislature this year. I am confident that whatever solution
they sort out will help restore public confidence in our regulatory
system. I am hopeful that we will have a constructive conversation about
the issues, and that the public interest of all Vermonters will be
served by that dialog.
