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What Malpractice Crisis? 

The real problem: how NC treats patients

There you are on the operating table, sliced open and fighting for your life. It was supposed to be a fairly routine surgery, and things were going fine until the surgeon, who has a drinking problem, accidentally sliced into a major artery. Oops.

If your operating table was in North Carolina, you would have no way of knowing that the same surgeon had had two similar "accidents" during surgeries, that like 145 other doctors, he's been in and out of a state-sponsored program to treat physicians with addictions, that his hospital privileges were revoked during one of his more out-of-control periods, that his colleagues have repeatedly complained about him to the North Carolina Medical Board or that he's been called before the hospital medical review committee for other potentially deadly errors.

By law, all of the above information is confidential in this state thanks to decades of lobbying by physician special interest groups like the North Carolina Medical Society and others. If you lived in a state like Massachusetts, you could access most of the above information in about five minutes by simply going online, because doctors there are required to disclose it by law.

But not in North Carolina, where you're entitled to more information about the deep fryer your food is cooked in at the local McDonalds than the track record of your neurosurgeon.

In theory, the North Carolina Medical Board is supposed to discipline doctors, but state law doesn't actually require the board to discipline anyone for anything. Since the majority of its members are selected solely by the North Carolina Medical Society -- the same special interest group lobbying to make it harder to sue doctors -- the board's decisions are often highly political. Over the last two years, the board has revoked the medical license of a doctor who testified against another doctor in a malpractice lawsuit because it disagreed with his testimony, but allowed Charlotte plastic surgeon Peter Tucker to continue practicing after a patient died in his recovery room following a botched anesthetization. Apparently, it's OK to kill a patient every now and then as long as you don't break the code of silence by testifying against your brethren in court.

Similar stunts earned our medical board one of the worst rankings in the country from Public Citizen, a Washington consumer group, which ranked our board 45th among 51 boards charged with policing doctors in 2002.

When the medical board doesn't take action against a doctor, all the charges or complaints against him or her remain confidential. That leaves consumers with just one place to go to find out about doctors' track records -- their county courthouse. This is what's missing from the current General Assembly debate over bills aimed at discouraging medical malpractice lawsuits. When you limit patients' ability to file lawsuits, you further erode the one sure way future patients have left to find out anything about doctors' track records.

The medical society, the big insurance companies and state legislators are all in a big hurry to push through legislation that would make filing malpractice lawsuits more cost prohibitive for lawyers in order to limit patients' ability to sue. But no one seems to be in a hurry to shine the light on doctors' disciplinary records or to level the playing field at the medical board. Sure, the legislature is considering forcing doctors to file notice of legal judgments against them from malpractice suits if they rack up three or more, but that information is already available at the courthouse. The rest will remain beyond patients' reach.

The result is further protection for a class of professionals who already have near total authority to police themselves, a luxury state law affords to few other industries.

Bills the legislature will vote on this spring would require patients to go before a three-person mediation board before a malpractice lawsuit can proceed. If the board decides they shouldn't go forward with the lawsuit and they do anyway and lose, the patient must pay the hospital or doctors' legal fees. That's on top of the $50,000 in legal expenses, much of it for expert testimony, that a lawyer must already front to argue a case.

Worse yet, insurance companies will now pay malpractice awards to victims on an annual basis over the remainder of their lives instead of in one lump sum. Because no interest would be factored in, these payouts could save insurance companies 80 percent over the course of the payout while patients with permanent injuries struggle to pay their medical bills and support their families because they can't access their money.

All this might make sense if malpractice lawsuits were escalating, but the number of suits per capita has been gradually declining. In 2002, there were just 608 malpractice suits filed in North Carolina, down 10 percent from the year before. That's an average of just six a year in each of the state's 100 counties.

Malpractice crisis? Hardly. The real crisis is how North Carolina treats patients.

Contact Tara Servatius at tara.servatius@cln.com

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