To the Editor
I read with interest the unfortunate circumstances surrounding the anesthetic mishaps recounted in a recent issue of the APSF Newsletter (20(4):61–68), and the equally disastrous ways the hospitals and internal legal advisors handled the mishaps. However, I do disagree with the implied suggestions that the physicians and hospitals failed somehow to ensure that “incompetent” practitioners are weeded out and not allowed to practice. In my opinion, this is an unjustified criticism.
One only needs to compare the 2 systems of justice meted out for an attorney accused of incompetence, and the physician accused of incompetence. I have been involved as a witness in both types of cases. At least in Florida, the system for the attorney is much simpler, and relies on evaluations by peer attorneys, the state bar, and the appointment of a legal hearing officer (usually a retired judge). After a hearing, a recommendation is made by the hearing officer to the state Supreme Court, and a decision is then made by the state Supreme Court regarding the attorney’s continued right to practice. The process ends there. There is no right of appeal to another court of law.
A physician has a far lengthier process to go through, both with the hospital, and/or with the state board of medical examiners. This is justified in many ways in order to ensure that a physician’s error in judgment is not used as “proof” of general incompetence for purely economic reasons. The federal Healthcare Quality Improvement Act of 1986 established many ground rules for fair hearings for physicians before their privileges can be restricted or revoked by hospitals. Among other provisions, these ground rules limit severely the ability of those with an economic interest in the outcome from having a role in determining the outcome, and guarantees the physician’s right of representation by an attorney at all levels of fair hearings. Similarly, it limits the liability of hearing committee members, providing they act in good faith. There is also an appellate process afforded a physician whose privileges have been restricted or revoked. In addition, a series of court challenges usually follows any official action by a hospital board, which, unlike the attorney’s situation, does not ensure a trial by the physician’s professional peers.
It should be understood that these 2 processes are the processes through which attorneys and physicians have their privileges or licensure revoked or modified, and are independent of the tort trials regarding accusations of malpractice. Regarding limitations of practice rights, the legal system is far more streamlined for the attorney, which may or may not be in the individual attorney’s best interest. Although the system for the physicians seems to better serve the interests of the individual physician, it also involves many attorneys at all levels of the proceedings, is slow and tedious, is very expensive for all parties except the participating attorneys, and often gives rise to the unjustified criticism that “physicians do not do a good job of policing themselves.”
Given the strong economic competitiveness between physicians in the marketplace today, should physicians and hospitals have more autonomy in the revocation or limitation of physicians’ privileges and licensure? Having such autonomy, I believe, would lead to abuse in many instances, and ultimately would not serve the best interests of the public at large or the medical community. In spite of such potential abuse, if the public truly wishes the medical community to have a greater ability to regulate itself, the medical community has no ability to do so under the current legal system. Changes in the system would need to be made, and the power to make those changes rests with the federal and state legislatures, one hopes, with responsible medical community input and participation. However, in light of the economic impact of the strong participation by attorneys in the physician hearing process, does anyone seriously think that the legal system wants the medical community to have more autonomy in determining the privileges or licensure of a given physician? Given the current legal processes and economic climate, the criticism of the medical community’s “failure to police itself” should be redirected toward better public education about the justified legal limits on the medical community’s autonomy in deciding its members’ right to practice.
David A. Cross, MD
Scott and White Memorial Hospital and Clinic
Associate Professor of Anesthesiology
Texas A&M Health Sciences Center