By YAMIL BERARD - Star-Telegram staff writer - Fri, Aug. 17, 2007
The Web site for orthopedic surgeon Jack Thomas shows the doe-eyed medical doctor with a "great bedside manner" and lists kindness and compassion as "hallmarks of his care."
Photographs of Thomas with an elderly patient appear as the words, "Dr. Thomas helped me to walk again. ... He is the most caring doctor I have ever had," take turns flashing across the home page.
The Texas Medical Board Web site also shows that Thomas -- who practices in a small community 45 miles northeast of Dallas -- has published a book on medical ethics. In fact, the only blemish that was on the site's profile of the physician earlier this spring was a December 1991 report of "mental incapacity."
But those who browsed another Web site -- the Texas Department of Public Safety -- would have discovered that Thomas pleaded guilty to three felonies, including Medicare fraud and illegally prescribing many dosage units of dangerous narcotics to people who weren't his patients. The federal Drug Enforcement Administration yanked his controlled-substances prescription license, and he served a 10-year probation until 2001.
A phone call to the Texas Medical Board would have revealed that Thomas, who was diagnosed with bipolar disorder, surrendered his medical license in 1991. He got it back in 1999.
Such gaps in the board's physician profiles are one of the cracks in the system that was supposed to add new layers of protection for Texas patients. Lawmakers supplied the board with more money -- a 50 percent increase in 2004 -- and new powers. The commitment was that patients would be more aggressively protected in the wake of new legislation that, in effect, made it more difficult for patients to sue doctors for malpractice. But after the initial push, resources have been cut back, and state data do not indicate that the Legislature has made good on its promises to beef up protections.
Public records show that some disciplinary actions against physicians have dropped since the 2003 change in law, particularly for some of the severest penalties. Fewer physicians are having their licenses suspended, and license revocations are flat, statistics show. What's more, lawmakers in 2003 created a state office to guide patients when they filed complaints with the medical board against their medical practitioners. But the Patient Protection Office lost its staff two years ago, when the Legislature stopped funding it. Now, it just has a Web site.
And the public still can't depend on the medical board's Web site for complete, accurate and timely information about doctors.
The upside, the board says, is that it is conducting more thorough investigations of individual complaints as a result of gaining resources, setting priorities, demanding more documentation and drawing on 400 expert witnesses who weigh in on cases.
Armed with new powers, the board is suspending some doctors within two weeks of reports of questionable activity, and the board now can immediately yank the licenses of doctors identified as being an immediate danger to patients.
Perhaps most importantly, the board is now using "teethier" restrictions -- such as barring physicians from treating certain types of patients or performing certain procedures -- and enforcing the penalties it imposes, said Don Patrick, the agency's executive director. In the past, he said, suspensions didn't mean much because doctors who were put on probation were allowed to continue to practice. Not anymore.
The board now also publishes a biannual newsletter listing all the doctors who have been disciplined, the cause of the action and the penalty. That deters bad behavior, Patrick said.
"Every doctor in the state learns from that disciplinary order," he said. "It is a powerful, powerful weapon."
But the case reviews are limited to the complaint at hand, Patrick acknowledged. Once a doctor is subject to a complaint, the board staff has no time to review other charts and documents that could give a better idea of the doctor's overall standard of care and analyze the root cause of problems.
"We want to see more, not just snapshots" of doctors' standard of care, Patrick said. "What we hope to see is a short movie."
The board doesn't pursue more extensive reviews because its resources have been stretched thin in the past two years.
And there is concern from consumer watchdog groups that the board is negotiating lesser penalties, such as minimal fines, rather than imposing more severe punishments, such as license revocations, because physicians are hiring attorneys to battle the board.
Their mere presence at board proceedings raises the threat of lawsuits, making the board more likely to negotiate punishment, doctors are being advised. So board hearings have become increasingly like court proceedings.
"I really handle those almost like a lawsuit," said Russell Thornton, a Dallas attorney who defends doctors in front of the board.
Thornton said that doctors who have legal representation and plenty of documentation can avoid what he deems "unreasonable recommendations" for discipline.
"The board doesn't want to see you again, so even if there's a problem, they don't want to pull your license. They understand you may have some problems in the way you practice medicine," Thornton said. "So I tell them, 'Look, when we go down there ... you've got to demonstrate to them why this kind of thing won't happen again and what steps you have taken proactively.'"
Another concern of consumer groups is that Texas is now drawing questionable doctors from other states.
The state's move to make it more difficult to sue doctors triggered an unprecedented number of applicants from states where Patrick says it is easier to sue doctors for malpractice, such as New York and Michigan.
All the applications -- a 92 percent increase from the first half of 2003 to the first half of 2006 -- added to the medical board's workload. That resulted in a backlog of processing applications.
Consumer groups have questioned why the board has licensed some of the physicians, including one who had her license revoked in several other states. She received a license to practice in Houston but is prohibited from practicing surgery.
"We're running the risk of Texas becoming a state haven for bad doctors," said Alex Winslow, spokesman for Texas Watch, an Austin consumers group that is tracking the licensing of doctors new to Texas. "Instead of improving healthcare for patients, it is getting even more dangerous for Texans."
Flaws in the system
What else needs attention to protect Texas patients? These are flaws in the system that can leave patients vulnerable.
Reliance on self-reporting
On its Web site, the board maintains physician profiles that are supposed to provide a way for patients to check doctors' disciplinary records.
But the board relies on physicians to self-report any criminal convictions and malpractice lawsuits, and some doctors don't provide that information. The Legislature doesn't require the board to monitor the Web site for accuracy.
After the Star-Telegram raised questions about the profile for Dr. Jack Thomas, because it did not list his felony convictions, the Texas Medical Board acknowledged "a crack" in the reliability of the information.
"We're going to have to look at how to fix this," spokeswoman Jill Wiggins said. "We don't have the staff or the resources to monitor it."
The board won't say whether it will pursue disciplinary action against Thomas for failing to report his criminal record on the Web site, but Executive Director Don Patrick said the board will typically take action if a doctor does not report accurate information.
After the Star-Telegram called the medical board, Thomas changed the profile to accurately reflect his record, Wiggins said.
The 56-year-old orthopedic surgeon did not return calls for comment.
Obstacles to obtaining information
By law, the board cannot release criminal records that it may have obtained as a result of its investigations, except under court order.
Other impediments: The board won't disclose if a physician is under investigation, so it may be months before the public learns of complaints. In some cases, information about doctors' self-reported alcohol or drug addictions is not disclosed to the public unless the physician has violated the state's standard of care.
Even when a doctor loses his controlled-substance prescription license, as Thomas did, the board may make no mention of it on the physician profiles.
Watchdog groups, such as Public Citizen, say that such an action should be routinely publicized by state medical boards.
Yet another hindrance: The public may not be able to locate disciplinary actions against doctors on the Web site because the information is provided in a "Texas Medical Board Bulletin."
While the bulletin is on the Web site, nothing states that it contains disciplinary information.
An agency official said that's because the bulletin's primary audience is doctors, not the general public.
Computer problems
The board's Web site link that would give the public access to doctors' discipline orders doesn't always work. "A lot of people have that problem," Wiggins said. "There seems to be an incompatibility with our system."
She doesn't see it getting fixed. It would take countless hours of programming to make it accessible, she said. "We have a limited IT staff."
Limited powers
The medical board itself is blocked from access to data that could boost its regulatory powers. Texas doesn't have access to confidential orders from other states, and it doesn't share its confidential orders with them. That is because confidential orders are based on physicians' self-reported information, officials said.
Insufficient resources
The 2004 boost in funding to $8.5 million allowed the board to hire more attorneys and support staff. But funding later fell, making enforcement more difficult. "There is concern about the agency's ability to maintain its current level of strength and vigilance in the current climate of diminishing resources," according to the board's strategic plan for 2007-11.
Last year, because of budgetary restraints, the board let vacant positions go unfilled, and ultimately it received an emergency deficiency grant so it could carry out pending enforcement actions and related technology improvements.
For 2007-08, the Legislature granted the board an additional $1.2 million, enough to repay the deficiency grant, restore funding to the 2004 level and meet state-required pay increases and other legislative mandates. It will also receive $600,000 to hire six additional full-time employees to help manage the surge of licensing applications.Without the extra staff, the board could not handle the thousands of complaints it gets every year.
"It would be better if we had some ability to do other things than just crank cases out the door," Patrick said.
Online: www.tmb.state.tx.us
Filling the coffers
Like most regulatory agencies of its kind, the Texas Medical Board is a moneymaker for the state.
A look at fiscal 2006 revenue and expenses:
Net revenue: $30,753,086
Net expenditures: $9,958,420
Excess: (to the state general fund): $20,794,666
Sources: State of Texas 2006 Annual Cash Report; Texas Medical Board
About the Consumer Report Card series
Evaluating healthcare professionals
This is the first installment of a periodic series of stories examining how well Texas is fulfilling its consumer protection role. Findings are based on documents and data compiled by the state, and the Consumer Report Card criteria employ some of the measures the state has devised to judge performance. Evaluations were determined by weighing a variety of factors and reflecting the state's overall performance.
What happened when you had a problem with a medical professional? Comment on your experience or suggest other topics for future consumer report cards.
For information on filing a complaint about a licensed healthcare professional, call the state's toll-free hot line: 800-821-3205
Read more in the Fort Worth Star Telegram
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