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Southwestern Law School

Sunday, October 7, 2007

More on the Texas NYT Story

Eric Turkewitz has posted (also at his own site) a rebuttal of sorts to the NYT piece I mentioned a couple of days ago.  The short version is that, while doctor supply has increased (by my numbers [from the Texas Medical Board site], about 22% from 2002 to 2007, the time frame Eric reasonably uses), disciplinary proceedings have increased more, about 78%.

As commenters point out at the TortDeform post, there have been other factors in play, with apparently the TMB focusing on more enthusiastic enforcement.  That could be, perhaps, reflected by the spread of enforcement actions. From the most recent announcement of 88 enforcement actions:

Actions included 11 violations based on quality of care; seven actions based on unprofessional conduct; five actions based on violation of probation or prior board orders; four actions based on inadequate medical records violations; three actions based on impairment due to alcohol or drugs; three action based on nontherapeutic prescribing; one action based on inadequate supervision; two actions based on violations of board rules; seven voluntary surrenders; four advertising violations; one action based an another state board’s action; one temporary restriction and 39 minimal statutory violations by 38 physicians. The board issued two cease and desist orders against unlicensed practitioners.

Unfortunately, a brief look at a 2002 press release doesn't include a comparable breakdown; at a glance,it seems to be not dramatically different in the distribution of reasons.  (But, it's worth noting, the descriptions are a bit vague at times.)

In any event, as with most things, it's probably somewhere in the middle.  It seems fairly evident that more doctors are in fact going to Texas, with the malpractice liability changes probably one of the reasons.  But there are many reasons to live in Texas, and that presumably applies to doctors too.  And, as Eric points out, the doctors choosing to practice there because of malpractice modifications may on average be somewhat less skilled -- but they may also (perhaps probably) be solid doctors who are tired of paying higher rates elsewhere, since many carriers don't base rates on experience with individual doctors.


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I don't see why it's "somewhere in the middle." If you ask patient safety advocates, they'll tell you that the Texas Medical Board wasn't doing enough to enforce discipline in 2002, and still isn't doing enough today. How many of the disciplinary cases are new doctors--are newly licensed doctors more likely to be disciplined relative to older doctors than newly licensed doctors were in 2002? Turkewitz doesn't say. He thus has no evidence to support his claim.

What is clear is that the TMB performs much more scrutiny of all of these new doctor applications (causing the backlog that Charles Silver complained about a couple of years ago in the first faulty attempt to claim that tort reform didn't make a difference), and it is quite likely that the new doctors are, on average, better than the doctors who had previously applied to Texas for licensing.

Posted by: Ted | Oct 7, 2007 6:24:54 AM

As he posted elsewhere, the reduced exposure to potential liability (whether justified or not) would tend to indeed attract physicians more prone to malpractice. That seems just as probable as them being better than average; I see no reason to suggest that TMB is doing more than other states, even if it's more than it used to be.

Posted by: Bill Childs | Oct 7, 2007 7:29:25 PM

How many of the disciplinary cases are new doctors--are newly licensed doctors more likely to be disciplined relative to older doctors than newly licensed doctors were in 2002? Turkewitz doesn't say.

Given that the Texas Medical Board seems to have already fudged the statistics once, claiming an 8% increase in disciplinary actions when it was actually about 10x higher, I don't know why anyone would have confidence in any additional stats they might offer.

Posted by: Eric @ New York Personal Injury Law Blog | Oct 8, 2007 8:37:51 AM

One of the stats not listed here, but should be looked at is how many of these Doctors are board certified. One of the Doctors that was listed in the BLOG was a board certified pediatrician and she let it go. That says alot, either she was too lazy to do the additional CME's required so she could better treat her patients or she doesn't care.
The TMB needs to increase the fines imposed on the doctors in question. If I am making 150,000+ a year and you impose a 1000 dollar fine on me, do I really care?
If the board were to take a more indepth look into medical practices, they would find many more infractions, misdiagnoses, and many others. I have had many experiences in which doctors have diagnosed patients with "Asthma" without first doing the simple tests such as PFT's or Pulmonary funtions tests to accurately diagnose Asthma. There are many examples out there where doctors are getting away with it at the expense of the patient who is relying on that doctor. There was an article posted in the Newyork Times many years ago by the medical director of Bellevue ER about ER doctors and how Paramedics were better qualified to work in the ER than the doctors were. This definately calls into question Board certification and the need for it.

Posted by: Texas Medic | Apr 27, 2008 12:27:04 PM

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