| Perspectives on Texas

I was moved when a family entrusted me to give a eulogy for their beloved. This great privilege highlighted a hallmark of a physician’s service to humanity — “to cure sometimes, alleviate often, but comfort always.” But I was horrified to learn that his death at the hospital may have been the result of a preventable error — one that was withheld from the family.

Sadly, that patient was not an isolated case. The Institute of Medicine’s (“IOM”) seminal report, “To Err is Human” first brought to light a “silent epidemic” of death by hospital errors in 1999. Moreover, the report concluded that “the majority of medical errors do not result from individual recklessness or the actions of a particular group — this is not a ‘bad apple’ problem. More commonly, errors are caused by faulty systems, processes, and conditions that lead people to make mistakes or fail to prevent them.” Among other remedies, the IOM called for increased and uniform nationwide reporting to learn from errors and to halve the death rate of up to 100,000 persons per year within five years.

Nearly 20 years later, the U.S. death rate from hospital errors has not decreased; it has doubled, and now claims about a quarter-million lives every year. It is the third leading cause of death for Americans, responsible for one of every 10 deaths. It accounts for six times more deaths than opioid overdoses. Meanwhile, calls for standardized, nationwide reporting remain unanswered, the epidemic persists, and a culture of silence lingers.

Disclosure of hospital errors remains an unfulfilled virtue — occurring in fewer than one in three cases. A RAND survey has found that the majority (60 percent) of hospital staff cite fear of reprisals as a primary basis for not reporting harmful errors. Moreover, in 85 percent of hospitals, physicians rarely if ever report adverse events despite a federal law enacted in 2005 to promote such reporting. Fear of reprisals for speaking out continues to loom large.

In lieu of reporting and learning from errors, punishment continues to reign as the “remedy” to protect patients. Although appropriate for a small minority who act with conscious disregard for patient safety, blame and punishment (e.g. lawsuits or discipline) do not cure, they exacerbate the key causes for hospital-related deaths or harm through silence.

In such a hostile environment, self-reporting is considered career suicide. Further, physicians fear speaking out on adverse events or other improprieties and being labeled disloyal or disruptive by hospital investors, administration or staff. Reprisals by the hospital or by proxy may follow.

It has happened to me. After I reported numerous hospital errors that caused harm, and even deaths, at a financially struggling hospital, a hospital investor unsuccessfully approached my medical peers and the hospital CEO to seek my termination over specious claims of “disruptive” conduct and “concerns” of quality of care. When that failed, the investor instigated a “self-initiated” complaint by the Texas Medical Board (TMB), the state medical licensing agency, with false and misleading disclosures. TMB zealously pursued a 3 1/2-year investigation that added two claims of boundary violations three weeks apart in 2015: one person denied but had been seen at the hospital four days prior, the other was sent by a hospital investor. Both were financially imperiled by my diagnoses and the implausible accounts were suspect of contamination.

I waited more than two years for my day in court. After a five-day formal hearing before a State Office of Administrative Hearings (SOAH) judge that featured 17 witnesses and more than 2,500 pages of exhibits, depositions, testimony, and briefings, I was exonerated, and all of the allegations were dismissed.

In contrast, my complaints about hospital errors have resulted in seven independent investigations by the Texas Department of State Health Services, each of which found state and/or federal violations by the hospital.

After my vindication, Scott Freshour, the medical board’s general counsel, made complaints against the SOAH judge that led to the judge’s forced resignation by his boss. These activities adulterate the independence and impartiality of the judicial process, a bedrock of our system of checks and balances in government.

The disrespect of the judicial process didn’t stop there. Despite their own dismissal of the case, the TMB categorized its overturned and debunked case as a “revised” sanction for permanent posting on the federal National Practitioner Databank (NPDB), a repository created by Congress to flag doctors found guilty of unsafe or unprofessional acts. And formal complaints dismissed as baseless inexplicably remain on public display on TMB’s website for five years after exoneration, further sullying a physician’s reputation and career prospects.

My pending civil litigation against TMB officials for overreaching their legal authority aims to bring transparency to help terminate these unjust practices, proxy retaliation and misuse of the NPDB.I filed a separate suit against Baylor Scott & White and Lakeway Regional Medical Center alleging they retaliated against me for my reports of harmful hospital errors — including a false report of trespassing and conspiracy that culminated in my arrest and incarceration on charges that were quickly dropped (the City of Lakeway paid me a settlement over the arrest).

Legislative reforms are needed to improve safety and regulation of healthcare in Texas.

First, we need legal safeguards to protect physicians from reprisals for reporting adverse events or improprieties. Hiding errors imperils patients’ lives and is a betrayal of trust and morally unjust. Although Texas law prohibits retaliation for reporting healthcare violations to the Department of State Health Services, the law is toothless; with no enforcement provisions, the overwhelming burden of litigation rests solely on the alleged victim and it has not provided legal succor since its enactment 25 years ago. Further, the “burden” of hospital reporting of preventable errors that result in patient death or harm has been suspended statewide for now more than a year because of a disaster proclamation the governor signed in September 2017 in the aftermath of Hurricane Harvey.

Second, reforms that emphasize education directed at the core culprits of medical harm and death — systems, communication, and behavioral failures — are needed. The Texas Medical Board is supposed to “protect the public with investigations, discipline and education” but for fiscal year 2017, only 2 percent of TMB’s total budget was spent on education, while nearly 60 percent, was spent on “enforcement.” For fiscal years 2015-17, the TMB conducted over 15,500 “evaluations,” or formal investigations, but only 5 percent were substantiated and resulted in discipline. These costly activities serve the needs of the bureaucracy, but do not serve or effectively protect the public. They are manifestations of medical McCarthyism with an unbridled state agency engaged in fear-mongering.

Third, legislative action is needed to create active oversight of the TMB to hold the agency accountable to the law. Currently, complaints against the TMB are vetted and monitored by the TMB itself. The agency has a disciplinary quota to meet — a goal to “convict”, i.e. impose disciplinary actions, in at least 12 percent of complaints against physicians, and one in five of these are self-initiated by the TMB (carrying an inherent risk of confirmation bias). Physicians are required to, in effect, prove their innocence at TMB’s “show-compliance” conferences — a policy that desecrates the presumption of innocence.

Transparency and prevention must replace shame and blame to effectively keep patients safe. The physicians’ Hippocratic credo — “to keep them from harm and injustice"— must be reaffirmed. Patients and physicians deserve a culture of justice.