Disregarding the symptoms

Maryland ignores most malpractice claims and settlements -- signs that other states use in examining physicians and protecting the public

By Fred Schulte | Sun reporter

December 18, 2005

First of three parts

Maryland's vow to safeguard patients has been undercut by breakdowns in the state system established to oversee doctors.

Regulators who once checked every malpractice claim now ignore most of them, disregarding a possible warning sign of negligence. Investigators take years to evaluate a doctor's competence, delaying any discipline. And secrecy policies conceal the names of doctors associated with tens of millions of dollars in injury claims, an investigation by The Sun has found.

This wasn't what lawmakers had in mind three years ago when they created the Maryland Board of Physicians, giving it broad powers to enforce standards of medical care and the duty to tell the public about doctors' malpractice claims histories.

The board has failed to wield its authority to scrutinize dozens of physicians who have been the focus of unusually high numbers of malpractice claims or substantial insurance settlements. About 17,000 doctors practice in Maryland.

Malpractice claims and payments by themselves are not proof of substandard care, legal experts and doctors caution, and in some cases may reflect the risks involved in medical procedures.

But regulators in Maryland are out of step with their counterparts in a growing number of states that flag patterns of malpractice claims and payments for review. Several states also make public much more malpractice information.

"We've got to get more aggressive to do something about doctors who are not providing good care," said Nelson J. Sabatini, former secretary of the state Department of Health and Mental Hygiene.

In its investigation of how well the state protects and informs medical consumers, The Sun examined the Board of Physicians, the role played by the General Assembly, and malpractice claims going back more than 10 years.

Among the newspaper's findings:

While most Maryland doctors are sued for malpractice no more than once in a decade, about 120 across the state were the focus of five or more claims, an unusually high number. Among them are a well-known Baltimore-area surgeon who was the subject of 17 claims since 1993, including three cases in which patients died.

A cumbersome disciplinary process results in few stringent penalties for doctors who fail to meet standards. Investigations are taking longer. Board of Physicians records show that the cases closed in 2005 took more than four years.

Marylanders have limited access to doctors' malpractice records, undercutting their ability to make informed choices about medical care. Most lawsuits end in confidential settlements with no determination of fault; some don't name the doctors.

Legislators established the Board of Physicians in 2003 amid criticism that doctors with extensive malpractice claims histories were escaping regulatory scrutiny by the panel's predecessor, the Board of Physician Quality Assurance.

The Assembly set aside five positions on the new board for consumers and eliminated the role of the state medical society in the disciplinary process.

Gov. Robert L. Ehrlich Jr., who appointed the board's 21 members after the legislation passed, said at the time that his administration is "committed to ensuring quality patient care for Marylanders." He declined to comment on The Sun's findings.

Maryland lawmakers will get a chance to re-examine doctor oversight when the Assembly convenes next month. The legislation that created the Board of Physicians expires in 2006, requiring an evaluation of the panel's performance.

A doctor's history

Dr. John P. Kostuik, former chief of spinal surgery and chairman of the orthopedics department at Johns Hopkins Hospital, has had 17 malpractice claims filed against him since 1993 -- among the most of any Maryland doctor over the period. In each case, Kostuik denied any negligence.

Court and state records show that 10 claims were settled confidentially, including three in which patients died. According to malpractice claims, two patients died as a result of blood loss during surgery, the third as a result of complications. Four other claims against Kostuik were dismissed, two are pending and one outcome cannot be determined from available records.