In his 1961 FSMB presidential address, South Carolina's Harold E. Jervey Jr., MD, articulated the importance of state medical boards and envisioned an expanding role for them:
“The boards of medical examiners have the most important role to play in maintaining discipline. This can be recognized from the fact that there are 252,294 physicians practicing in the United States of America and only 180,507 belong to the A.M.A. Only the boards have any degree of control of them. Secondly, the boards have what organized medicine does not possess — a legal authority and legal status. This permits them to act with the force of law and without the great fear of lawsuits which seem to haunt societies.
There are many dedicated conscientious men serving on state boards. In the main, they attempt to do an efficient and creditable job. However, the attitude of too many leaves much to be desired. On more than one occasion I have heard board members state just as long as a delinquent physician left his state, he didn't care whether any action was taken or not. It was no longer his responsibility.
In my opinion the public is entitled to know that a physician's license has been revoked, for its own protection. Not only from that standpoint, but unless the profession and public are informed no one will be aware that medicine is attempting to police its own ranks.
Within each state a set procedure should be established, or a central source maintained from which the boards can obtain information on actions against physicians. The Federation should be the central clearing agency for all disciplinary actions. It should, as a minimum requirement, be able to provide information on disciplinary action taken by any board in the country. It should promulgate this to all boards at regular intervals of time.”
Harold E. Jervey, MD
FSMB President, 1960–61
Quoted in the Federation Bulletin
While in 1961 there were 252,294 physicians in the United States and in 2012 there were 878,174 — a nearly 300 percent increase — what has remained relatively constant is the percentage of disciplinary actions taken by medical and osteopathic boards at between one and three percent.
In his commentary Dr. Jervey notes that medical boards have the most important role to play in maintaining discipline. This concept represented a shift away from local societies and associations resolving disputes to recognition of the public's expectation that the profession as a whole was overseeing its members. Dr. Jervey urged boards to move from a focus on licensure to a system of practice oversight that included investigation and discipline.
Today, in addition to boards' actions, restrictions on a physician's practice come from a number of sources, including the Center for Medicare and Medicaid Services (CMS), insurers, hospitals and systems in which the physician practices, and state legislatures. The official legal authority to enact discipline continues to lie with the boards but other entities have financial incentives that play into how physicians practice medicine. Payment sources can and do dictate treatments, such as which hardware an orthopedic surgeon may use. While patients and physicians welcome treatment based on outcome data, the decisions are not always based on data, but on dollars.
In 1961 it appears that board memberships were predominantly held by male physicians. Now we have great diversity of membership and public members who contribute significantly to the mission of public protection. The time commitments for board membership and the loss of income make our members real heroes and heroines in the quest for safe medical care.
With the advent of the Federation Physician Data Center (FPDC), the federal government's National Practitioner Data Bank (NPDB), and the Federation's various reporting services, physicians disciplined in one state cannot evade detection when crossing into another unsuspecting state. The central repository called for by Dr. Jervey is alive and flourishing. In many cases boards share underlying investigative information with one another as well.
Websites maintained by the boards enable the public to learn a great deal about their physicians and other licensed health care professionals. Some states, such as North Carolina, offer physician profiles. If a physician has been disciplined, copies of the detailed documents are also available. Transparency of process and decision-making ensures that the profession and the public understand the role of medical boards in patient safety.
What accounts for the fact that the percentage of disciplinary actions is relatively the same as it was 50 years ago, while boards have advanced in dramatic ways? I would like to believe that it is because we are doing a better job of licensing health care professionals, aided in part by access to one another's disciplinary actions through the Federation and the FPDC. Most boards also work to rehabilitate rather than punish physicians, such as those suffering from mental health and substance use disorders.
While these advances may partially account for the low rate of discipline, it cannot be the full picture. The culture of 50 years ago in which physicians are reluctant to serve as complainants or witnesses in legal proceedings lest they breach unwritten rules of conduct, persists today. I believe it is the single largest threat to self-regulation. As a result, in the last decade we have seen a shift away from locally-based, physician-determined disciplinary boards into national regulatory agencies following major scandals in Great Britain and Australia.
Much the same as it did 50 years ago, the public demands a critical appraisal of physician behaviors and practice competence. State boards rely on community physicians and health care systems to report problem physicians promptly. However, even though laws require health care professionals to report incompetence, unprofessional conduct and impairment to the state boards, they hesitate to do so for fear of retribution. In some states, hospitals can be fined by the state board for failing to report actions, yet they devise legalistic mechanisms for moving the problem physician to the next institution and unsuspecting patient.
While recognizing that there are systems problems that result in patient harm, the role of boards to hold individuals accountable and ensure that physicians maintain competence in their specialties is essential. Boards need reports from those in the best position to detect problems as they are observed. We have a track record of evaluating and remediating those physicians amenable to returning to safe practice. In order to preserve the privilege of self-regulation and ensure patients receive high quality care, all members of the health care community need to share information and work to return physicians and other professionals we regulate to practice whenever possible.
“Past and Present” couples an excerpt from an article that appeared previously in the pages of the Journal or its predecessor, the Federation Bulletin, with a companion essay authored by an invited commentator. Here, Kathleen Haley, JD, executive director for the Oregon Medical Board, reflects upon Harold Jervey's 1961 FSMB presidential address — noting how much medical regulation has changed over the past 52 years.
About the Author
Kathleen Haley, JD, is Executive Director of the Oregon Medical Board.