"A common criminal has more rights in a criminal action than a physician does in a civil action," says Fries, "because these regulatory agencies can write their own policy and follow their own processes."
The board makes all disciplinary decisions behind closed doors--a policy that Kasunic vehemently supports. Many people in the medical community file complaints against their own, he says--and they would clam up if they knew their confidentiality could be at stake. "The complaint process is kept confidential," adds fellow boardmember Irene Aguilar, "because many times the complaints have inflammatory stuff that turns out not to be true."
Keeping the process confidential prevents doctors from getting into a "cover-your-butt kind of mode" and can help them learn from their mistakes, says Aguilar, an internist at a public-health clinic and one of the most outspoken members of the board in its public meetings. "We feel that physicians will be more honest with us if they feel they can be very candid when they respond."
But the board came under fire for its secretive process in 1996, when Beth Gray, an Evergreen parent, discovered that her son's pediatrician had repeatedly lied in his confidential response to her complaint. The board dismissed her complaint until Gray--who accidentally received a copy of the doctor's letter to the board--painstakingly sorted through her son's medical records to point out each contradiction. As a result, the board launched a pilot study to see how frequently doctors lie in their responses, and--with strong support from the Colorado Medical Society and Copic Insurance Company, which insures about 75 percent of the non-government-employed doctors in the state--concluded that the process should remain secretive.
Currently, however, the board plans to discuss whether to push for legislation that would penalize doctors for lying. And Gray is creating a nonprofit group called First Contact that will listen to victims of medical malpractice and act as a clearinghouse for resources. "We don't have help writing complaints--and the doctors have their lawyers," says Gray, who is building a network of volunteer physicians and nurses to help individuals decipher the relevant medical records. "A lot of the time people don't know what went wrong; all they know is, 'He was fine and now he's dead.' It just breaks my heart when people are going through something like this and they have to go through it by themselves."
According to the Journal of the American Medical Association, the annual number of deaths due to medical malpractice would equal the fatalities from three jumbo jet crashes every two days. But rather than openly discuss their errors and how they could have been prevented, doctors are often instructed by their insurance companies to hush up the facts because they could provide grounds for a lawsuit.
This culture of silence might be changing, however. In a recent newsletter, the American Medical Association describes a movement to create a "confidential, non-punitive system for reporting errors and near-misses in clinical care across the U.S. system"--similar to the process used by the Federal Aviation Administration to analyze aviation mishaps before they become disasters.
In the meantime, most Coloradans don't even know that a state medical board exists--or understand what it does. "I know about the Better Business Bureau," says Randel. "I think it has more publicity than the state medical board." Gray would like to see information about the board posted in every doctor's waiting room. But board administrator Miller worries that too much visibility would bog down the process with more and more petty complaints--from patients, for example, who had to wait an extra twenty minutes to see their doctor.
The board's staff is already stretched thin, Miller explains. "We have 60 percent fewer staff than medical boards of comparable size, and our statistics show we perform better than many of those boards." Funded by medical license fees, the board's $1.5 million budget must cover all administrative and legal costs. "We receive 42 percent less funding than an average board of comparable size," says Miller. "I'm very proud of what we're able to accomplish with the resources we have. But we need to do better in certain areas and we certainly try to do better."
"Boards aren't really the bad guys," says Jeni Dingman, the Pueblo-based spokesperson for PULSSE, a patient advocacy group. "We need laws changed to make things better for consumers."
Like other state bodies, the medical board is subject to periodic "sunset reviews" by the Office of Policy and Research with the Department of Regulatory Agencies to assess its performance. Prior to the last review, in 1995, discipline against a doctor's license had to be based on two or more acts of substandard care; now, just one will suffice. The board's next sunset review is not scheduled until 2015.