INTRODUCTION

Federal and State laws and regulations and private sector medical entities have established many methods to discipline and sanction errant members of the medical profession. This chapter evaluates as possible indicators of the quality of medical care three such activities:

• disciplinary actions taken by State medical boards,1

• sanctions recommended by utilization and quality control peer review organizations (PROS) and imposed by the U.S. Department of Health and Human Services (HHS), and • malpractice compensation, particularly court awards.

Disciplinary actions by State medical boards, PRO/HHS sanctions, and malpractice compensation, either separately or in conjunction with each other and other indicators, may have the potential to identify physicians who do not follow accepted standards of care. Those physicians who are disciplined, sanctioned, or successfully sued for malpractice may actually provide substandard care. On the other hand, not all physicians who provide substandard care are disciplined or successfully sued. Studies of avoidable injuries indicate that the universe of avoidable adverse outcomes may be significantly greater than the number of disciplinary actions, sanctions, and malpractice suits (152,595). These studies suggest a large number of poor-quality physicians are not identified or penalized, thereby pointing to the ineffectiveness of existing systems to identify all those individuals providing poor-quality care.

This chapter uses procedures somewhat different from those described in appendix C to evaluate the reliability and validity of disciplinary ac

'In the following discussion, State licensing bodies and State disciplinary bodies will be called State medical boards, although their official titles as well as their organizational loci vary among States.

tions, sanctions, and malpractice compensation as indicators of the quality of care. There are two reasons for modifying the procedures described in appendix C when considering these three indicators. First, the procedures described in appendix C apply to a systematic synthesis of the literature, and studies that examine the causal relationship between any of the three indicators discussed in this chapter and the quality of care are not available. In the absence of research studies, this chapter uses deductive reasoning from the indirect evidence of descriptive information to provide some insight into the reliability and validity of disciplinary actions, sanctions, and malpractice compensation as indicators of quality.

The second reason for modifying the procedures outlined in appendix C is that the three potential indicators discussed in this chapter are essentially legal processes that rely on judgment and have little or no science base. For purposes of this chapter, the term reliability refers to consistency of the decisions made by a legal body (e.g., disciplinary actions taken by State medical boards). The term validity refers to the scope of the decisions made by a legal body and the capacity of the decisions to actually measure quality. Evidence on reliability and validity is derived from examining the structure of the legal bodies, the grounds for taking actions, the procedures used in taking actions, and the types of actions taken. In the case of disciplinary actions by State medical boards and PRO/HHS sanctions, judicial review of the actions is also examined.

A possible confounding issue in OTA's analysis is that the reliability and validity of disciplinary actions, PRO/HHS sanctions, and malprac

'Reliability and validity, as described in app. C, are concepts used in applied social science and are not traditionally associated with legal systems.

tice compensation as indicators of the quality of medical care depend to a large extent upon peer review.3 Differences in criteria used by peer physicians, even experts, in making decisions about medical diagnosis and treatment are well documented (71,185). Such differences may have troublesome implications for the reliability and

3State medical boards use the expert opinion of their physician members to interpret and apply the vague language often found in legislation governing license discipline. Furthermore, "expert" peers testify when physicians are brought up for hearings. The entire sanction process within PROS depends upon peer opinion, from the original identification of a possible violation to succeeding reviews of the violation. Peer review is also an important part of malpractice cases that are heard in court. "Expert" peers testify to the standard of care that can be applied to the case and whether the defendant met the standard.

validity of expert peer opinion in disciplinary actions taken by State medical boards, sanctions recommended by PROs and imposed by HHS, and malpractice compensation.

Analyses of the reliability and validity of disciplinary actions, sanctions, and malpractice compensation as indicators of the quality of care are presented below. Also presented are analyses of the feasibility of using each indicator. The final section of this chapter draws conclusions about the current usefulness of the actions, used singly and together, as quality indicators; suggests methods for improving the reliability and validity of the three actions as quality indicators; and discusses current and future means of disseminating information about the three.

The legal authority for licensing physicians to practice medicine and for restricting or revoking licenses rests with the States. In most States, the same body that grants licenses to applicants that it has determined are qualified to practice medicine also disciplines physicians who it has decided are unfit to continue practice (32,260). All State medical boards have the authority to revoke or suspend a physician's license. Other disciplinary actions include probation, limitations, fines, reprimands, letters of censure, letters of concern, and collecting costs of proceedings (206). The general grounds for disciplinary actions are unprofessional conduct or professional incompetence (32). The medical practice act of each State mandates specific grounds, such as incorrect drug prescription and substance abuse, for disciplining physicians.

Medical licensure is intended to grant the privilege of practicing medicine to individuals who are of good moral character and are competent to provide safe care to the public (70 Corpus Juris Sec. 19), but it does not ensure continuing competence-an important issue in light of changing medical knowledge and techniques. The purpose of disciplinary actions by State medical boards is to "protect the public against unfit practitioners" (70 Corpus Juris Sec. 35). State medical boards, which historically have been very con

servative in censuring physicians (208), have increased their activity in recent years. Disciplinary actions increased from 1,540 in 1984 to 2,108 in 1985 (91) to 2,302 in 1986 (240). Nonetheless, the percentage of practicing physicians disciplined in 1986 (0.50 percent) is significantly less than the 5 to 15 percent of physicians that some authors have hypothesized to be professionally incompetent to practice (169,208). Although the effectiveness of State medical boards in taking disciplinary actions is an important quality concern, the more specific intent of this chapter is to evaluate whether the disciplinary actions taken by State medical boards are good indicators of the quality of care.

Disciplinary actions taken by State medical boards are worth examining as a measure of quality, because they have face validity for average consumers. An average consumer would expect that limiting or withdrawing a physician's license to practice medicine indicates that the physician is professionally incompetent and would be concerned about using the physician for health care.

"There were 462,126 physicians providing patient care in 1986 (35). "In most cases, revoking a physician's license prohibits him or her from practicing medicine. There have been well-publicized instances in which physicians whose licenses were revoked in one State continued to provide medical care in other States where they held licenses. Public and private efforts have been working to eliminate this problem.

Reliability of the Indicator

Nationwide consistency of disciplinary actions by State medical boards is not to be expected, because the granting and limitation or withdrawal of medical licenses are State responsibilities. The proportion of physicians who have had their licenses revoked or modified varies greatly among States (see table 6-1). Differences in medical performance, legal impropriety, and inaccuracy of reporting among the States can account for only a small fraction of the variation in the proportion. A greater part of the variation is attributable to differences in State laws and regulation, and, perhaps, the intensity with which State medical boards engage in disciplinary activities (499).

A State medical board's discipline of similar cases may differ because of factors that are not related to the quality of care. Important witnesses sometimes fail to appear, physicians' lawyers vary in expertise, and aggravating and mitigating factors, which are not defined in statute or case law but vary from case to case, must be weighed in disciplinary decisions (389). Consistency in decisions is particularly difficult to achieve in types of cases where physicians disagree about what constitutes acceptable practice. In some States (e.g., Colorado and Connecticut), a threat to consistency is that more than one body is involved in disciplinary activities (206).

In general, the reliability of disciplinary actions as an indicator of quality within a State depends on the individual State. An investigation of 24 States by the Office of the Inspector General of HHS found "inconsistencies in the type of disciplinary actions taken in relation to the charges and even in the meanings of the different types of actions" (361), both among and within States. Whether disciplinary actions in other States are erratic, and if so, to what extent, is not known.

For the most part, the consistency of disciplinary actions taken within a State depends on the precision of the language specifying the grounds for discipline. The more vague the language, the greater the possibility for differing interpretations and applicability. Consistency of such actions is also related to the specific violation, since most States have precise grounds for some violations and ambiguous grounds for others. Most State

medical practice acts list specific grounds for infractions dealing with drug prescription and use, fraud, and other violations (280,720). On the other hand, few of the States that specify incompetence in the practice of medicine or substandard practice as grounds for disciplinary actions define incompetence precisely. Illinois' Professions and Occupations Code defines "professional incompetence as manifested by poor standards of care" (111). In the face of such indefiniteness, consistency is difficult, and application of the rule requires a case-by-case interpretation of the applicable standard of practice.

A State medical board's composition and operating style also enter into the consistency of its decisions. Particularly if the grounds for disciplinary actions are vague, a State medical board could be arbitrary and capricious in its adherence to law and regulations and allow extraneous facts, such as the race, religion, or community standing of physicians, to enter into their decisions. In addition, most boards are voluntary and work long hours on difficult issues with little financial reward. Extensive caseloads are common (658), and the medical boards are usually limited in their disciplinary performance by staff and funds (361). As a result, the reliability of their decisions may be compromised.

In addition to taking formal disciplinary actions against physicians, State medical boards take informal disciplinary actions (91). The rationale and procedures for informal actions differ among the States. Boards take several times more informal than formal actions (91). In some States, informal disciplinary actions are taken because of a lack of investigatory resources and the backlog of unheard cases that most boards currently face (658). In other States, informal actions are used as a means of educating physicians. Even informal actions are often serious (91). The propensity for inconsistency among such actions could be high, because informal actions are confidential. Such actions could be used selectively to avoid disciplining some physicians and not others.

Validity of the Indicator

About one-half of the formal disciplinary actions taken against physicians by State medical

boards are on the grounds of inappropriate writing of prescriptions. Such infractions are the easiest to prove because of the exactness of prescription laws (658). Inappropriate prescribing and a physician's personal drug or alcohol abuse are the grounds for three-fourths or more of the disciplinary actions taken by State boards. Conviction for felony and fraud is among the most common of the remaining grounds for license discipline. A relatively small number of disciplinary actions are based on incompetence-the ground for discipline that would most clearly indicate poor quality of care.

If incompetence is strictly interpreted as the only violation that is a quality violation, disciplinary actions by State medical boards would not be a valid indicator of the quality of the medical care. A more liberal interpretation of incompetence to include inaccurate drug prescribing and drug and alcohol abuse is reasonable. The statistics just cited on types of violations present an incomplete picture of the importance of incompetence in disciplinary procedures. In addition, few medical practice acts identify incompetence as grounds for discipline, and the language of the acts that do is usually vague and difficult to interpret (694). In addition, obtaining "clear and convincing evidence," of incompetence in most States is extremely difficult, time-consuming, and costly (239). Boards often use overprescribing of drugs and drug and alcohol abuse, which they have found often coincide with incompetence, as grounds for action instead of trying to prove incompetence (90,239,694,706,720). In particular, alcohol and drug abuse, characteristic of the impaired physician, and physical and mental illness can result in substandard performance and avoidable medical injury (636).

Several grounds for disciplinary actions are related to law and ethics. Many of these may not affect the technical aspects of quality but may influence interpersonal relations. The grounds vary greatly in seriousness and include conviction of a felony, conviction of a crime or felony related

'No ground for discipline adequately describes the lack of professional ability or incompetence. The specific term varies among States and includes unprofessional conduct, gross incompetence, manifest incapacity, and malpractice and gross/repeated malpractice. All of these terms have no uniformly understood meaning.

to medical practice, fraud in obtaining a license, violations of narcotics laws, violations of child abuse reporting acts, betrayal of professional secrets or privileged communications, and making untruthful or exaggerated claims relating to professional excellence or abilities (34,260). Other grounds for disciplinary action relate to charges of essentially economic violations, such as fraud regarding fees, fee-splitting, false or deceptive advertising, and overcharging or making false claims for reimbursement (34,260). Whether any, some, or all of these violations affect medical decisionmaking is not known, but to the extent that a violation affects an individual's trust in a physician's care, the ability of a physician to provide competent interpersonal care is compromised. People have different expectations of their physicians, and, depending on the type and seriousness of the violation, many people would not be comfortable going to a physician who had violated the law.

If one accepts that all violations that lead to formal disciplinary actions are quality violations, then such actions appear to possess validity as a measure of quality. The burden of proof for taking formal disciplinary actions rests with the State, and such actions usually must be based on "clear and convincing evidence," a difficult standard of proof. Due process safeguards are applied (70 Corpus Juris Sec. 43), and procedural aspects are sufficiently rigorous that the decisionmaking process is unlikely to be affected by external influences and the decisions are based on the evidence presented (260). The time taken to complete a formal disciplinary action-about 3 years—is indicative of the carefulness of the process.

Other factors operate in favor of protecting physicians' licenses. Inadequate funding and staff often limit States' ability to prepare their cases as well as the physicians' paid legal counsels.' Testimony from expert witnesses against the licensee has often been difficult to obtain because of a fear of civil liability for defamation (260,694).8

'Andrew Watry, Executive Director of the Georgia State Board of Medical Examiners, reports that the Board's annual expenditures for legal fees for 60 actions is $80,000 to $100,000. A physician may spend as much as $50,000 to $100,000 in legal fees for one case (694). "Professionals' concern might decrease as a result of the recent passage of the Health Care Quality Improvement Act of 1986 (Public Law 99-660). The act grants a limited immunity from damages un(continued on next page)