Cases can be dismissed with a "letter of concern," seen only by boardmembers and the physician and kept confidential from the public. A letter of concern might explain that the boardmembers don't "believe that the doc provided the best care that they could have--and [boardmembers] want to put the physician on notice that they expect him to do better in the future. They try to use it as an educational tool to say, 'We think you could improve here, and we'd like you to assess how you're doing,'" Miller says. The board does keep tabs on these physicians. "If we're seeing a physician who got a letter of concern one month, and six months later we see them again for the exact same thing, the board's not very happy about that. And sometimes what we can do legally is bring that case back."
The board must enforce the state's Medical Practice Act, which makes some violations cut and dried: Any doctor with a substance-abuse problem will be forced to get treatment, for example, and a doctor who has sexual relations with a patient will certainly be disciplined. (Doctors are allowed to have consensual sex with a patient six months after terminating their doctor/patient relationship.)
But "standard-of-care" cases, where a doctor's medical performance is at issue, are far more subjective. "It's a very individual process," says Kasunic.
If the panel decides to pursue a complaint (which happens in about 20 percent of cases), it goes to a staff investigator, who will gather records, talk to witnesses and hire expert consultants. The investigation report then heads back to the panel, which can dismiss the case or issue a "letter of admonition" to the physician, leaving a public mark on his or her career record (the physician has twenty days to dispute this letter and decide to legally fight it). About 5 to 10 percent of the time, the case goes even higher--to the attorney general's office, where four attorneys are dedicated to the prosecution of medical board cases before an administrative law judge.
This is where the Randels' case ground to a halt. "The dismissal of this case should not be construed as an endorsement of Dr. Fries' care and treatment of your son," panel A chair Irene Aguilar wrote to Greg's parents. "Rather, it was a decision based upon the likelihood of being able to prevail at a hearing before an Administrative Law Judge."
From July 1, 1997, to June 30, 1998, seven physicians actually had their licenses revoked by the board; another twelve agreed to surrender their licenses and retire. Thirteen were suspended from practicing; seventeen were put on probation and their practices limited; and eighteen received a letter of admonition. License revocations and letters of admonition are the only actions that become public record.
"Ninety to 95 percent of our cases settle before going to hearing," says Miller. The court writes an initial decision--but again, it's up to the powerful medical board to have the final say. "They really get to decide what happens to the doc," says Miller. "They may accept the judge's recommendation, or they may not." A doctor can appeal a board decision all the way to the state supreme court.
"More than likely," according to Miller, the physician will continue practicing medicine during this entire process--unless the board believes that the doctor poses an "imminent danger" to the public and decides to suspend him or her immediately. "The board does that on average eight to ten times a year--usually in impairment cases, where you discover a physician who has an active drug or alcohol problem and you need them out of practice until they can get their act together," Miller says. Only one or two doctors are suspended each year for giving substandard care--and those cases must be "pretty egregious" to warrant suspension.
Consumers can find out if a doctor has been formally disciplined by accessing the World Wide Web at www.docfinder.org or by calling an automated system at 303-894-7434. But unlike California's medical board, which posts all medical malpractice judgments and arbitration awards over $30,000 on its Web site, Colorado patients who want to know a doctor's legal track record have to sleuth out the information in every courthouse in the area. Out-of-court settlements are kept off the books altogether. A National Practitioner Data Bank--which records disciplinary actions taken against doctors across the U.S.--is accessible only to health-care providers, not the general consumer.
The insurance companies that cover doctors in malpractice cases are supposed to let the board know whenever a physician loses a lawsuit or settles a case out of court so that the board can decide whether to launch an investigation of its own. But just because a patient or his family has sued a doctor--and won--by no means guarantees that the board will take that doctor to the woodshed.