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Senator: Audit the Board of Medicine

Sen. Toddy Puller wants the Joint Legislative and Audit Review Commission to take a second look at the Virginia Board of Medicine.

The request by the Mount Vernon Democrat in Senate Joint Resolution 276 comes almost 10 years after JLARC found the board put public safety at risk by allowing physicians to continue to practice in the face of serious allegations of misconduct and took much too long to resolve cases.

In the report prepared in 1999, JLARC cited several examples in which the board took more than three years to suspend or revoke a physician’s license despite complaints that the physician was providing substandard care to seriously ill patients. The average time for resolving a case was 980 days.

The resolution notes that the average time for resolving cases between July 2006 and September 2007 was 391 days and that only 27 percent of cases were completed within case standard guidelines.

It also asks JLARC to study the effect of legislation in 2003 that changed the standard for administrative scrutiny from gross negligence to negligence and gave the board the authority to accept confidential consent agreements in lieu of disciplinary action for minor misconduct.

Puller filed a similar resolution last year, and it cleared the Senate unanimously but died in the House Rules Committee.

She said has filed the resolutions at the request of former Del. Frank Medico, who held from 1982 to 1989 the House seat that Puller won in 1992 before her election to the Senate in 1999. Medico made the request after having issues with some physicians, she said.

Stephen E. Heretick, the Portsmouth attorney and city council member who is president of the Board of Medicine, said he would welcome another JLARC review.

“I am confident that the governor and the legislature will appreciate how far we’ve come since the 2000 report,” he said.

Heretick said more than 90 percent of complaints to the board are closed within 250 days, the standard Gov. Timothy M. Kaine has set for state regulatory agencies. “We have almost eliminated the backlog,” Heretick said.

When a complaint is made, intake staff determine whether it raises an issue that the board has the authority to address. If it does, board staff members put the case in a category ranging from A to D. “A” cases involve the possibility of death or disability, while “D” cases tend to involve what Heretick described as etiquette issues.

A and B cases routinely are assigned to investigators, most of whom have some sort of medical background. They are expected to confer with the physician and complete their report within 30 days. Those investigations provide “a substantial basis for us to make very rapid decisions,” Heretick said.

That decision can include a summary suspension of a physician’s license, although such suspensions are relatively rare.

Lesser shortcomings are handled by advisory letters, confidential consent agreements or public reprimands, often with requirements for continuing medical education beyond the minimum standards.

The board’s executive director and deputy executive director have the authority to evaluate and close C and D cases. A and B cases go the board president, who decides whether there is probable cause for a determination of misconduct.

Those cases are handled through informal conferences before three members of the 18-member board. Formal conferences for serious cases or appeals from adverse rulings for the physician in more minor ones are held before seven members of the board.
Michael L. Goodman, a Glen Allen attorney who frequently represents physicians in the disciplinary process, agreed with Heretick that the board and its staff are addressing complaints more thoroughly. “I really think the board has changed dramatically,” he said. “Every complaint is given full attention” and “the administrative staff of the board work very hard,” he said.

“There is no leisure to the process, and I see it in the stress on the investigators and in the administrative staff to get cases moved,” he added.

He questions, however, whether the extra scrutiny and pressure improves public safety, and “goodness knows that the clinicians do not appreciate what is often perceived as a shoot-first-and-ask-questions-later approach.”

He suggested more emphasis on the board’s role to educate professionals before violations occur.

“The board licenses, educates, regulates and disciplines,” he said. “Unfortunately, there seems to be too much emphasis on discipline these days. That may be a natural reaction or over-reaction to prior years when there was, perhaps, too little.”

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