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In 49 cases, time ran out

By Carol Gentry
8/21/2009 © Health News Florida

More than four dozen complaints against Florida doctors—including some that involved patients' deaths —have been dropped without action in recent weeks because the state Department of Health missed the deadline for filing an official complaint.

A dozen other pending complaints about physicians that DOH received will likely face a similar fate soon, records show.

Those complaints, no matter how serious, will remain secret. They won’t even be shown to the Board of Medicine, which has legal responsibility to protect the public.

”We don’t have any control over cases that haven’t been presented to us,” said Dr. Fred Bearison, chairman of the Board of Medicine. “We don’t even know about them.” 

Crunch time has hit DOH because the 2001 Legislature set a six-year statute of limitations in professional discipline cases. The time limits don’t apply in some offenses, including sexual misconduct, drug dealing, or a deliberate cover-up.

The clock starts ticking on the date of the event in question, not from when the state learns of it. So events that occurred after the law took effect but before the fall of 2003 have passed the time limits.

“There are going to be a lot of cases we didn’t protect the public on,” Chief Prosecutor Ephraim Livingston told the medical board at its June meeting in Fort Lauderdale. In some of them, he said, “patients died.”

Since that revelation, Health News Florida has been trying to get information on the cases that were dropped when the clock ran out.

But DOH officials say Florida law blocks release of any information, even a general description without names. So it’s not possible to tell how many of the cases were minor – such as failure to file a report on time -- and how many caused serious harm to patients.

As of mid-August, DOH Deputy Press Secretary Eulinda Smith said, 49 cases had been closed because the statute of limitations had passed, and 12 were on the verge of the time limit.

The statute of limitations applies to the other health professions, as well, but they have been able to keep up with the flow of cases. All the other professions combined, including nurses, dentists and other sizeable groups, had just four cases that timed out, plus a dozen pending.

It’s not clear why the disciplinary process has been so much slower for medical doctors. Current and former prosecutors offer several reasons:

The volume of cases is huge, given the size of the staff.

Last year, the department’s 18 prosecutors working on complaints against MD’s prepared and brought more than 2,500 cases before the two board subcommittees that consider whether to proceed to formal charges, according to the board’s annual report.

That would amount to 140 cases per attorney, or nearly three a week.

While records show that Livingston and his staff have whittled away at the backlog, he reported this month that they still have 321 cases more than two years old in their inventory.

High turnover.

Medical cases can be technical, and it takes a couple of years to train attorneys, Livingston said. About the time they get trained, they leave for better-paying jobs in the private sector, often defending physicians.

”Government attorneys are grossly underpaid,” said the Board of Medicine’s counsel, Assistant Attorney General Ed Tellechea. “They haven’t had a salary increase in three years.” Sometimes attorneys hop from agency to agency because it’s the only way they can get a raise, he said.

It’s hard to attract young lawyers to public service, he said. “Administrative law isn’t one of those sexy areas of the law.”

Investigation and prosecution of health professionals is paid for from licensure fees, not general revenue, so there is money available to add staff. However, DOH and the boards can’t spend that money unless the Legislature agrees. And it hasn’t.

Stalling by attorneys for doctors and hospitals where incidents occurred.

By law, DOH is supposed to take no more than six months from the date of the complaint to bring a case before a subcommittee of the medical board, whose members will determine whether there is “probable cause” that a law has been violated. That allows only three months for investigation and three for prosecutors to prepare the legal case to go before the medical board’s probable-cause panel.

In just three months, ”investigators can’t get enough information,” especially if they encounter resistance, Livingston said.

They do, and not just from doctors. Patients, especially those who have obtained narcotics by "doctor-shopping," often refuse to authorize release of their medical records. “We’re having to subpoena records,” said Dr. Lisa Tucker, a member of the medical board.

Medical malpractice cases interfere with the disciplinary process

Florida law requires state insurance officials to notify DOH of medical malpractice cases after they are closed, regardless of the outcome. Often, the notice comes more than six years after the event that gave rise to the lawsuit.

Plaintiff’s attorneys or their clients could file complaints with DOH early on and avoid the statute-of-limitations problem. But they seldom do.

Sometimes cases go astray.

Chief Prosecutor Livingston conceded that sometimes there isn’t a good reason why cases hit the time limit. Staff gets behind on paperwork, or cases get misfiled.

“We’re not going to try to hide it,” he said.

One serious case of patient harm that came before the Board of Medicine this month occurred in December 2002 – almost seven years ago. It barely made it to the “probable cause” panel for action in July 2008 – five months before the time limit – because of one of those cracks that cases fall through.

Dr. Sook Marino, a retired obstetrician in Orange Park, filed the complaint in 2004 when a friend suffered a serious injury from another physician’s error.

”I got a couple of letters from DOH that said, ‘We’ll let you know how we proceed.’ Then I never heard from them again,” she said.

In 2006, she decided to find out what had happened. She called at least five times, she said, but couldn’t get anyone to call back. Eventually she demanded to talk to a supervisor, at which point a search began for the file.

”Somebody put it in the wrong place,” Marino said. “Nobody knew where it was…They stumbled around and found it and said, ‘Okay, we’ll reactivate it.’

”If I hadn’t called,” she said, “this case would have gotten lost and that would have been the end of it.”

--Carol Gentry, Editor, can be reached at 727-410-3266 or by e-mail.