HOME

"Board easy on doctors' sex offenses: State revokes few licenses for misconduct," screamed the headline for a The Dallas Morning News article on January 6, 2002.

Those words were a bucket of cold water in the face of Donald Patrick, MD, JD who had, just months before, accepted the position of executive director of the Texas State Board of Medical Examiners (TSBME). The words were also the beginning of a renaissance for the board, says Patrick.

In mid-2001, when Patrick joined the agency, which is responsible for licensing and disciplining physicians and other medical personnel in Texas, he thought he would be heading up one of the premier medical boards in the country. But by fall of that year, he was beginning to discover that the board's performance was not what he had imagined.

"I was inundated by calls my first week on the job, and most of those were complaints about how long it took to get licensed," he recalls. At the time, the average wait for a new license was six months, more than double the average of other states.

"So one weekend, I took home an application and did my best to fill it out correctly. I couldn't do it," he says.

Under his direction, the staff revised the forty-page monstrosity to a sleek ten pages, all written in straightforward English and designed to allow staff to quickly ascertain and investigate an applicant's qualifications.

Patrick had budgeted one hundred and fifty thousand dollars for new staff to speed up licensure operations, but the streamlined application allowed the same staff to issue licenses in just six weeks instead of six months. At the time, it seemed like a revolution for a bureaucracy mired in complacency and red tape.

But January 6 was the day that he realized he had bigger problems to conquer.

"They said we were soft on sex," recalls Patrick. In fact, Doug Swanson, an investigative reporter at The Dallas Morning News, had written that the board gave a slap on the wrist to physicians who were pedophiles and sexual predators.

"I thought, 'That can't be right.' When I investigated, I discovered that we had done exactly what he said we had," Patrick recalls. "That first article was followed by three more articles that were equally damaging, all of them accurate."

Patrick met with Michele Shackleford, general counsel for the board, deputy director Jerry Walker, and the executive committee for the board, led by then-board president Lee Anderson, MD.

"It took us about a week to figure out that this was a chance to make things better," said Patrick.

They realized that a major impediment to reform was a lack of investigative and legal staff. Too often, bad physicians with good lawyers were able to hang on to their licenses despite felony prosecutions and egregious malpractice. The board was so short staffed that it had become common practice to "lose" files behind filing cabinets as a way of reducing astronomical caseloads, said Patrick. Even serious cases would languish for months or years because there was no one to investigate the claims or prepare the legal paperwork.

A second problem they found was a lack of understanding by board members and staff as to exactly what constitutes sexual misconduct that violates the Medical Practice Act (the Texas law which governs the practice of medicine). Because of the position of authority granted to physicians by culture and by law, state law considers sexual contact to be a serious breach of trust of the physician-patient relationship. Under Texas law, sexual activity of any kind between a physician and a patient is a violation of the Medical Practice Act, even if both consent to the act. Despite this unambiguous standard, the board routinely turned a blind eye to acts that could be construed to be consensual.

The staff and executive committee took two immediate actions. First, they reallocated the hundred and fifty thousand dollars earmarked for licensure, using the money to hire additional investigative and legal staff. Second, they educated the full board and staff about the legal aspects of sexual misconduct. And then they began to go after the physicians whose actions were deemed most egregious-sexual predators, drug and alcohol abusers, and those whose repeated mistakes or poor practice resulted in patient harm.

During the next legislative session, Patrick also asked Texas lawmakers for a seventy percent increase in the agency's budget, from five million dollars to eight and a half million dollars, paying for the increase with a raise in physician licensing fees. The additional funds went into hiring more lawyers and investigators. There are now seventeen full-time litigators and thirty investigators to handle the six thousand complaints the board receives each year.

The money and effort resulted in a rate of disciplinary action that more than doubled from 2002 to 2003. In the period from May 2003 to May 2004, about ninety physicians had their licenses either suspended or permanently revoked.

Some of this success is due to a legislative change in the wording of the Medical Practice Act, Patrick says.

"There were times in the past when the board would revoke or suspend a physician's license, and he or she would go to a district court judge and ask for, and receive, a stay or an injunction, effectively preventing us from acting," says Patrick. This was possible because the Medical Practice Act allowed revocation or suspension of a license only if the physician is "a real and present threat" to patients or the community.

"That's a difficult standard to meet," says Patrick.

According to Austin attorney Ace Pickens, who The Dallas Morning News has called "the go-to guy for Texas physicians in trouble," and who has defended physicians before the board for nearly forty years, the law was reworded in 2003 and the word "present" was removed. That meant that past actions and predictable future actions could be considered, not just present behavior. That change has made it more difficult for physicians whose licenses have been suspended or revoked to get judges to overturn board rulings.

The increase in legal staff and higher pay for legal staff has also had an effect. The turnover rate for staff attorneys, which was more than fifty percent per year in the nineties, has fallen dramatically. Lawyers at the board are now more likely to stay long enough to follow a case through to completion, and are more likely to have the skill and experience to match wits with experienced defense attorneys like Pickens.

Punish or rehabilitate?

One of the difficult questions that the TSBME wrestles with when faced with physician mistakes or malfeasance is this: Do you punish the doctor, or do you recommend remedial actions, such as more education or monitoring, to correct problems? Which is more in the public interest: to rehabilitate a troubled physician and make good use of all those years of training and experience, or to make sure that the physician never again practices medicine?

"We're not really in the business of jerking licenses," said TSBME President Lee Anderson, MD, a Fort Worth ophthalmologist in an interview with The Dallas Morning News in 2002. "Our primary purpose in the disciplinary process is remediation."

Since Anderson made that statement three years ago, the board has gotten a lot more interested in jerking licenses.

The board made headlines across Texas this year by revoking the licenses of several infamous physicians in Dallas, Houston and Fort Worth. In February, the board handed down a record fine of eight hundred and forty-five thousand dollars to Houston orthopedic surgeon Eric Heston Scheffey, MD, for performing unnecessary surgery and overbilling the Texas Workers' Compensation system. (See accompanying article, "Notorious Predator or Insurance Company Victim?")

Physicians in Dallas and Fort Worth were stripped of their licenses for "nontherapeutic prescribing," which is a nice way of saying that they were selling narcotics prescriptions to drug abusers. Physicians have also lost their licenses for sexual misconduct and even spousal abuse.

The board's about-face caused the Texas Medical Association (TMA), a trade association that represents the interests of about thirty-four thousand Texas physicians, to ask the Legislature in 2003 to appoint a monitor for the board. Patrick went to the press, accusing the TMA of trying to get him fired and trying to extract the agency's newfound teeth.

An Associated Press article quoted Patrick as saying, "It's about our increased determination to be vigilant. They have said, 'He's out of control and we've got to find a way to control him.' What they're maddest about is the fact we're pursuing people and taking licenses, which we never used to do."

The TMA backed down on that proposal, saying that TMA and the board of medical examiners shared the same goal of protecting Texas patients. Now, the two groups have a more collegial relationship.

"We are one hundred percent supportive of the need for an outside agency to monitor physician practice," says Louis Goodman, PhD, executive vice president and chief executive officer for TMA. "They (the medical board) are tough. They are extremely diligent. Putting the patient first is foremost in their minds. They are doing an 'A' job." If the board errs, he adds, it is in the direction of overenforcement, not underenforcement.

Patrick agrees that over the past several months, the trade association has come to view strong enforcement as in its best interest.

"Doctors do not get their political strength from other doctors, but from patients. A doctor goes to the Legislature and says we need X. The political power to get that done comes from patients, from people who vote. If doctors are seen as being only in it for the money, their power is diminished," says Patrick. Strong enforcement of the Medical Practice Act reinforces patient trust in the medical community, he says, and he credits Goodman with helping physicians see that perspective.

Goodman credits Patrick with working to improve the relationship, too. TMA has long felt that the board doesn't do a good job of informing physician's about the seriousness of the "informal settlement conference," which, despite its name, is the meeting where board members receive evidence and make recommendations about disciplinary actions against physicians.

TMA legal counsel, Donald "Rocky" Wilcox, notes that, because of the use of the word "informal," many physicians don't take the meeting seriously.

"It's really a 'show cause' hearing and it's a very serious matter," he says.

Both Goodman and Patrick agree that physicians should consider legal representation for that meeting and should be prepared to answer all questions on the issues. The TSBME, TMA, the Texas Osteopathic Medical Association and the Texas Medical Foundation worked together on an educational video about the disciplinary process.

Wilcox says he frequently hears from TMA members who have been fined thousands of dollars for being too slow in supplying medical records that are requested by the board for use in complaint investigation.

Sometimes, the physician hasn't even seen the letter requesting the records, which may be opened by an office worker who doesn't understand the seriousness of the request. The physician's first knowledge of the request may be the notice of a $5,000 fine for failure to respond, and those physicians may call Wilcox for help.

"It's not up to us to determine who is right or wrong in any case. We just want to ensure that the physician gets a fair hearing, a chance to present his or her side," Wilcox says.

Patrick readily admits that the system isn't perfect. "I'm sure there are doctors who (have been disciplined) who didn't deserve it, just as there are those who weren't disciplined but should be."

TMA and the medical board also take different approaches to physicians with alcohol and drug problems. TMA emphasizes early intervention, and has rehabilitation programs set up through each county medical society to intervene before the physician can cause patient harm. By law, if a colleague knows that another physician presents a threat of patient harm, then the colleague must report the physician to the medical board for disciplinary action. But there is a gray area where it is obvious to colleagues that the physician has a problem, but the problem has not yet become critical, leaving the issue of reporting up to the individual colleague.

The medical board and Patrick take a more stringent view, believing that board oversight is important for protecting the safety of patients. The board also has a rehabilitation program, but it is more restrictive than the voluntary program of TMA.

Wilcox notes that, if a physician will not cooperate with the TMA's voluntary rehabilitation, then those physicians who have knowledge of the problem have no choice but to report the physician to the medical board for discipline.

From neurosurgeon to lawyer

Patrick brings both a legal and a medical perspective to his job as the top cop enforcing the Medical Practice Act, having spent twenty-five years practicing neurosurgery before earning a degree from the University of Texas School of Law.

Patrick graduated Texas A&I University in 1958 at the age of nineteen, then went on to earn a medical degree from Houston's Baylor College of Medicine in 1962. He did his internship at Ben Taub General Hospital in Houston and his neurosurgical residency at Baylor, finishing in 1969. In the middle of his residency he was drafted into the Army, and was assigned as the chief of neurosurgery for what he says was the busiest neurosurgical hospital in the world-the Twenty-Fourth Evacuation Hospital in Long Binh, South Vietnam.

"I was dropped into this situation that was in terrible disrepair," he says, recalling that assignment as the first time he felt a real passion about his work.

"The feeling came over me that I would do the best I can do at everything I do from now on. It might not be enough, but it would be the best that I could do," he says. He felt that he was part of something special, and put his whole heart into making it better.

He returned to Austin in 1970, and has since been an integral part of the Austin medical community. He served for twenty-five years as chair of the emergency medicine committee of the Travis County Medical Society and was chief of staff at Brackenridge Hospital in 1984. He is credited as being one of the guiding lights in the creation of the Austin-Travis County Emergency Medical System.

"Mike Levy was the prime mover behind the EMS," says Patrick. "He had great ideas, but he felt that no one was listening to him because he wasn't a doctor." Levy sought out Patrick as a champion for his cause, and the two became close friends. Together, they launched an EMS system that is today widely regarded as one of the best in the country.

In 1988, Patrick served as president of the Texas Association of Neurological Surgeons, and divorced and remarried that same year.

He admits to having "grand obsessions." Until 1994 he had a thriving neurosurgery practice, which he gave up to study law. He says he was burned out by "the agony of uncertainty in neurosurgery."

"You could do a really great job, and the patient would die, or you could do a mediocre job and the patient would have a great result," he explains. "There is a whole lot of unhappiness in the practice of neurosurgery and it got to me."

After law school, Patrick tried to return to neurosurgery, splitting his time from 1997 to 2001 between seeing spinal surgery patients and representing law clients seeking social security disability payments.

Then one day he read that Frank M. "Skip" Langley, the previous TSBME executive director, was leaving after only seven months on the job.

"I thought, 'wow!' I felt a strong calling and couldn't let go of it," says Patrick. In his ignorance, he thought the board was doing a great job. "I thought they were the gold standard of medical boards," he adds.

Leading the revolution

In 2002, Patrick's "grand obsession" became changing the medical board. In addition to fighting for more resources to investigate and prosecute complaints, Patrick has reshuffled the agency, removing those who couldn't get on board with the new direction, and moving others into areas where they could be more effective. He says there is now an esprit de corps in the agency that comes from a common mission.

He gives much of the credit for the agency's turn around to Doug Swanson, The Dallas Morning News investigative reporter who threw that bucket of cold water in Patrick's face in 2002.

"He should have gotten a Pulitzer Prize for that series," says Patrick. "He probably would have, but we changed the board too fast."

Karen Leach has been writing about health and the business of healthcare for more than twenty years, and still isn't afraid to visit the doctor. You may e-mail Karen at kleach@goodlifemag.com.

YOU CAN INVESTIGATE YOUR DOCTOR ON-LINE

Want to know more about your doctor's disciplinary and malpractice history? Go to www.tsbme.state.tx.us. Click on "Check on Your Doctor." Search the database by physician name to find a complete profile on any physician licensed to practice in Texas. The database includes medical education, board certifications, areas of specialty, disciplinary history, malpractice claims (self-reported) and other information.

The board also publishes news releases detailing disciplinary actions approved by the board, plus any special actions that the board takes. (Eric Heston Scheffey, MD, rated a special news release when the board suspended his license in August 2003.) You can view the news releases on the TSBME site, archived by date. While brief, the descriptions of the physician's malfeasance provides enough information to get an idea of what actions brought about the discipline.

During the past year, news releases chronicled disciplinary actions against thirty-four Austin-area physicians. The problems detailed included things as minor as slowness in providing medical records to actions as serious as poor medical judgment, drug and alcohol abuse, mental illness, greed, and mismanagement of patient records.

Seven Austin-area physicians had their licenses suspended or severely restricted, three for drug or alcohol problems, two for assault on patients, one for moving her practice without notification, and one for nontherapeutic prescribing.

The seven physicians whose licenses were suspended or restricted are:

John Scott Bennett, DO, of Luling, license G4820-On October 8, 2004, the TSBME and Bennett entered into an agreed order wherein Bennett voluntarily surrendered his license, based upon allegations of nontherapeutic prescribing.

Jeffrey L. Butts, DO, of Austin, license H7939-On June 3, an agreed order was entered placing his license on probation for fifteen years under terms and conditions including undergoing psychiatric treatment, participating in Alcoholics Anonymous, abstaining from prohibited substances, limiting his practice to an approved group or institutional setting, and submitting to screening for alcohol and drugs. The action was based on violation of a previous board order regarding intemperate use of drugs.

T. Sean Fitzpatrick, MD, of Austin, license L8056-On December 10, 2004, the TSBME and Fitzpatrick entered into an agreed order suspending his license, based upon allegations that Fitzpatrick relapsed while under a rehabilitation order. On February 4, 2005, an agreed order lifted the suspension effective April 1, 2005, after Fitzpatrick provides documentation from designated physicians and the Travis County Impaired Physician's Committee confirming that he is able to safely return to practice. After the suspension is lifted, Fitzpatrick would be placed on probation for ten years under certain terms and conditions.

Philip Joseph Leonard, MD, of Austin, license E8662-On December 10, 2004, the TSBME and Leonard entered into an agreed order restricting his license for ten years, including a prohibition from any contact with female patients, based on allegations that Leonard made bodily contact of a sexual nature with multiple female patients.

Kerby James Stewart, MD, of Austin, license J3623-On March 14, 2005, the TSBME entered an order suspending Stewart's license, based on allegations that he violated his agreed order of December 12, 2003, by drinking alcohol.

Tasca Darlene Snow, MD, of Austin, license L3836-On December 10, 2004, the TSBME publicly reprimanded Snow and placed certain terms and conditions on her license, specifically requiring that she take and pass the Medical Jurisprudence Examination within one year, and assessing an administrative penalty of five thousand dollars. The action was based upon unprofessional conduct, in that Snow closed and moved her practice without providing required notice to the board, terminated patient care without providing reasonable notice to her patients, and failed to provide a means for patients to obtain their medical records upon closure of her practice. Snow had twenty days to file a motion for rehearing, which she did not do, and the order was effective January 10, 2005.

Gregory Simon Vagshenian, MD, of Austin, license J8155-On October 19, 2004, the TSBME and Vagshenian entered into an agreed order restricting his license, in that he shall not engage in the practice of medicine that involves direct patient contact or the prescription of any drugs or medication for any person. Vagshenian shall limit his medical practice to administrative, nonclinical medicine only. The action was based upon conviction of the offense of assault on patients in the course of his practice.

-Karen Leach

HOW THE DISCIPLINARY PROCESS WORKS

Each year, the Texas State Board of Medical Examiners (TSBME) receives about six thousand complaints. Of those, about two thousand are found to involve alleged violations of the Medical Practice Act, which give the TSBME jurisdiction over the case. The other four thousand involve complaints that are not about matters covered in the Medical Practice Act, and so cannot be investigated by the agency, or are against other professionals not licensed by the TSBME. (One complaint centered on the lack of toilet paper in the physician's office.)

Once it is determined that the board has jurisdiction, the case is assigned to a board investigator, who requests medical records, talks to the complainant, and assembles the facts of the case. If the issue is about the standard of care provided, a physician who is board certified in the same specialty as the physician being investigated reviews the medical record. If that physician decides that there is a violation of the standard of care, the case is further scrutinized by a second specialist. If those two disagree, there is a third review.

If a complaint is found to have merit, it will move ahead through the system. If not, the complainant is informed of the decision, and given a chance to appeal in person or to provide more evidence. Occasionally, says Donald Patrick, MD, JD, executive director of the TSBME, a complainant will do a better job of presenting a case on appeal, and the complaint will be accepted for further investigation.

This process results in about four hundred to five hundred cases that are referred to an "informal settlement conference." At this conference, the investigators, the physician and any witnesses testify as to the facts of the case, and the board either exonerates the physician or offers the physician an "agreed order." This agreed order lays out the terms of discipline, including fines, license suspensions, orders to take continuing education or have another physician monitor procedures, and monitoring for alcohol or drug use. If the physician agrees to the board's terms, the matter is settled there. All agreed orders are publicized in press releases that are sent to news media throughout Texas.

If, however, the physician does not agree to the board's decision, the matter can be referred to an administrative law court for a hearing and recommendation. This usually happens only in the most serious cases, where a physician is threatened with the loss of license. The judges send their recommendation back to the TSBME, which then makes a final ruling and outlines any punishment.

The physician can appeal the TSBME's final ruling in state district court in Travis County.

NOTORIOUS PREDATOR OR INSURANCE COMPANY VICTIM?

In 2004, Houston orthopedic surgeon Eric Heston Scheffey, MD, was found by two administrative law judges to have performed twenty-nine surgeries on eleven patients that were wholly or partially unnecessary. Two of the patients died. Several others started out with minor problems and ended up permanently disabled in the course of undergoing repeated surgeries, the Houston Chronicle reported.

At the time of the ruling, the judges recommended a fine of two hundred and ten thousand dollars, and Scheffey filed an appeal. In February 2005, the Texas State Board of Medical Examiners (TSBME) heard that appeal and upheld the judges' recommendation to revoke Scheffey's license. Then, in an unusual, in-your-face action, the board quadrupled the amount of the fine recommended by the judges, making it eight hundred and forty-five thousand dollars.

According to the Houston Chronicle's Leigh Hopper, "Houston lawyer Priscilla Walters, who represents former Scheffey patients, stood and applauded. A former state investigator who worked on the Scheffey case prepared to celebrate with champagne."

In a rare scene of concurrence between physicians and trial lawyers, a group of orthopedic surgeons (all of whom had testified as expert witnesses against Scheffey) joined the patients' attorney and investigators in praising the board for its actions.

According to attorney Ace Pickens, who represented Scheffey, the doctor plans to appeal the board's decision to district court judges in Travis County.

The high fine and revocation of Scheffey's license was in stark contrast to the board's 1995 action, when it voted to place Scheffey on five years probation, despite a recommendation from administrative law judges that Scheffey lose his license. Scheffey was accused of overcharging for care and performing unnecessary surgery. He took the board to court, seeking an injunction against the probation, and managed to delay the probation until 1997. During that time, two more patients died while under his care.

Scheffey has had a troubled medical career, spending more than half his licensed years on board-imposed probation. He first came to the board's attention following a November 1985 arrest by Houston police, who had found thirty grams of cocaine in his car. Five days before that arrest, one of his patients, Mary Tywater, died on the operating table. In 1986, Scheffey admitted to having used cocaine for more than eighteen months before the arrest. Despite that admission, the board placed Scheffey on ten years probation for "intemperate use of drugs." The ruling did not mention Tywater's death.

In 1995, when Scheffey was placed on probation for unnecessary surgeries and overcharging, the board restricted him from performing surgery on patients. He appealed that decision, and put off the restriction until 1997, when the decision was upheld.

Despite that ruling, the Texas Workers' Compensation system kept Scheffey on its list of recommended physicians. Scheffey was paid more than three million dollars in 2002 for treating workers' comp patients, more than any other physician in the state.

According to attorney Ace Pickens, who represented Scheffey in his board defense, Scheffey was not performing surgery in violation of the board order; he was assisting with surgery. Pickens also accuses the workers' compensation insurance carriers of attacking Scheffey in court for being an effective advocate for patients who needed treatment.

"There is no question but that he had a big target painted on his face and the board did not act reasonably. The expert witnesses against him were paid consultants of the insurance companies," said Pickens. He referred to the insurance company physicians as "Dr. No's," and added that all of Scheffey's surgeries were done after obtaining a second opinion, as required under workers compensation rules.

Administrative law judges Shannon Kilgore and Michael Borkland, however, noted in their ruling that Scheffey often did more in the operating room than either the patient or other doctors had authorized.

"If I had to paint a scenario of a doctor who was practicing medicine in the worst possible way I can imagine, it would be this scenario I see with Dr. Scheffey's practice," Donald Patrick, MD, JD, executive director of the TSBME, told the Houston Chronicle in 2004.

In the case of Kevin Butler, a forty-one-year-old Houston truck driver who came to Scheffey after a fall in which he hurt his ankle and knee, Scheffey's treatment left the patient permanently disabled. Judges Kilgore and Borkland found that Scheffey performed six surgeries on Butler over a period of ten months, all of them unnecessary, leaving Butler unable to work or even to stand for long periods. Another physician who examined Butler before surgery had diagnosed the ankle injury as a severe strain, and found no damage to the knee during an MRI exam.

Butler was luckier than Cecil Viands, a cook with an injured back whom Scheffey operated on six times between 1992 and 2003. In 2001, other physicians told Viand that he should not have further surgery. Despite that, Scheffey operated twice more, in 2001 and 2003. Viands developed an infection following the 2003 surgery and died. Following Viands' death, the medical board took emergency action to suspend Scheffey's license, triggering the administrative law hearing that resulted in revocation of his license. In Viands' case, the administrative law judges ruled that the procedure that Scheffey claimed to have performed was medically impossible.

The judges' findings on these and the other surgeries came after five days of testimony by six expert witnesses retained by the board, all of them board-certified orthopedic surgeons who combed Scheffey's patient records. Their testimony painted a picture of a physician who provided substandard care, billed for care that could not have been given, and preyed on uneducated injured workers by persuading them that they needed surgery despite evidence to the contrary.

Pickens, in defending Scheffey, said that he was unable to present expert witnesses of his own to refute the board experts because physicians in Texas have grown afraid of retaliation by the board.

Pickens is correct in noting that some of the physicians who testified against Scheffey are paid consultants of insurance carriers, including J. Martin Barrash, a Houston neurosurgeon who has frequently testified for plaintiffs as a paid expert witness in malpractice suits, and N.F. Tsourmas, MD, who serves as medical director for the Texas Mutual Insurance Company, the largest workers' compensation insurer in Texas. But also testifying against Scheffey was Michael Epstein, MD, a Baylor College of Medicine surgeon.

Scheffey, who has been named the defendant in more than sixty medical malpractice lawsuits, was one of the nation's most-sued doctors, according to an analysis published in 2000 by The Hartford (Connecticut) Courant. Scheffey reported none of these suits to the TSBME, as the law requires.

BAD DOCTOR OR BAD SYSTEM?

-Karen Leach

In 1999, the Institute of Medicine, which is part of the National Academies, a nonprofit organization that provides science-based advice on biomedical science, medicine and health, published To Err Is Human: Building a Safer Health System. One of the conclusions of this report was that poor systems were at the root of much of the nation's patient safety problems.

"Good systems can protect patients from medical errors," says Kenneth Shine, MD, who was president of the Institute at the time the report was published. He is now executive vice chancellor for medical affairs for the University of Texas System.

"The most competent physicians will not succeed unless the systems are of very high quality," he says.

Much of current patient-safety thinking is based on the "human factors" theory used by the airline industry and other high-risk systems. Human factors theory assumes that even highly trained, highly competent professionals will experience fatigue, lapses of concentration and other human frailties. Systems should be designed to prevent adverse results from the inevitable mistakes. Checklists, reminder systems, redundant reviews of decisions, and group responsibility for outcomes all help insulate patients from human mistakes.

An example of human factors engineering are the surgical "universal precautions" advocated by the American Medical Association, the American Hospital Association, and the American College of Surgeons. The precautions require that the patient and physician together mark the intended surgical site with indelible ink, and all members of the surgical team confirm the location of the surgical site before the first incision is made. The protocol was created after several highly publicized surgeries in which the wrong limb or organ was removed, permanently maiming the patients. In each case, the error was made by highly trained physicians who found themselves at the center of a perfect storm of circumstances that led them almost inexorably to the error. In analyzing these horrific errors, medical analysts realized that it was not a bad doctor that caused the damage, but a bad system.

Outside of the surgical suite, however, the team approach has been slower to develop.

"Medicine is a hierarchy and, until recently, it was a patriarchy in which nurses, pharmacists and others were afraid to challenge a physician," says Shine. This hierarchical system leads to a mentality in which the wrong medication could be ordered and given because people just did as they were told. That attitude is changing, and medical centers are now moving toward systems that require everyone in the system to take responsibility for patient safety.

"Schools and residency programs are beginning to teach about leadership, which is different from authority," says Shine. "To lead one must listen, as well as tell, to get the best out of all members of the team."

Within the UT System, says Shine, "We no longer look at malpractice claims as just a legal problem. We see them as an opportunity to improve our systems. This notion of systems care doesn't diminish individual responsibility," he adds. Instead, it allows the entire medical team to focus on preventing future mistakes.

The nation's medical industry is also focusing on improved information technology as a way to increase patient safety and ensure that all patients receive needed preventive care. President Bush has called for a universal system of Electronic Health Records, or EHRs, by 2012, though Shine says that the majority of physician practices will have them well before that date.

When fully functional, a national EHR system will allow physicians and patients to access medical records remotely, so that, for instance, an emergency room doctor could quickly see the cardiac history of a patient who comes in with symptoms that might be a heart attack. EHRs will also automatically remind a physician that a patient needs a flu shot, a mammogram or other routine preventive service, even if the patient's reason for being there is an acute illness or injury.

Even small town physician practices are investing tens of thousands of dollars on these systems. Shine notes that when a six-doctor primary care practice in Brenham decided to recruit some new young physicians, they decided to install an EHR because it would help them attract better candidates.

Though the current generation of students coming out of medical school see technology as an expected part of the landscape, the move to EHRs is more difficult for older physicians with established paper systems.

"There is a technology gap that is generational," says Shine, "but it is not universal. The key for physicians is time. If you can show doctors how it will save time, most will use the systems."

One area where electronic systems have already proven to boost patient safety is electronic order entry for medications, used primarily in hospitals. One study of these systems showed that while there were just as many errors occurring as with paper systems, the errors generally did not result in patient harm.

For example, if a physician misplaces the decimal in a dose, ordering one milligram instead of one-tenth of a milligram, a good system will override the order with a pop-up window, alerting the physician to the mistake. Likewise, if a patient is already on a medication that will conflict with one that is being ordered, the system will again alert the physician. With elderly patients who are on multiple drugs ordered by multiple doctors, this can be key to a good outcome.

Want to read the Institute of Medicine's report on patient safety? Go to http://nap.edu, which is the National Academies Press web site. In the Search field, enter To Err is Human, which will take you to a page where you can either purchase a copy to download, purchase a copy to be sent by mail, or read the publication on-line at no cost.

-Karen Leach