Finding doctors' misdeeds harder in privacy-loving NH
Sep. 25—Enough patients complained about surgeon Kenneth A. Johnson that he was placed on leave and later resigned his job at the Mayo Clinic in Minnesota in 2017. He applied for a Vermont medical license in 2018 and didn't disclose he was under investigation in Minnesota.
Both states later disciplined Johnson, according to board records. But neither state's discipline shows up on Johnson's public-facing record in New Hampshire — where he now lives, according to his Vermont record, and where he has an active medical license though he is no longer practicing.
Unlike many other states, patients in New Hampshire can't always see whether other state medical boards have disciplined their doctors. And it's hard to figure out how many times their doctors have lost or settled malpractice lawsuits and made payouts to patients after major medical errors.
In a state where legislators and the public guard their privacy tightly, New Hampshire law keeps such information from public view, making it harder for people to make informed choices about their health care.
The secretive system has prompted legislators, the Attorney General's Office and a major Manchester hospital to launch reviews after revelations in recent months that the state's Board of Medicine website doesn't list malpractice payments and out-of-state disciplinary actions against licensed New Hampshire doctors.
David Suchecki, an attorney who has spent 20 years trying malpractice cases for patients in New Hampshire and Massachusetts, said New Hampshire's failure to report malpractice cases, discipline by employers and other information to the public through the Board of Medicine leaves patients without critical information.
"The public is just completely in the dark as to who they're receiving treatment from," Suchecki said.
Malpractice claims are relatively common, with the American Medical Association estimating that one in three physicians has faced a malpractice suit at least once in their careers, though paying out through judgments or settlements is rarer.
More than two dozen New Hampshire doctors have resolved allegations of bad medical care in New Hampshire with financial payments to the alleged victims, according to a Union Leader review of more than 1,000 doctor profiles on the website of the Massachusetts Board of Registration in Medicine.
No hint of such payments exists in those doctors' licensing records on the New Hampshire Board of Medicine's website.
Information about when malpractice payments were made as well as the doctor's business address and phone number are listed on individual doctors' profile pages on the Massachusetts site.
None of that is available for doctors licensed in New Hampshire.
Law restricts disclosure
A New Hampshire law, RSA 329:18, dictates what information can be disclosed by the state Office of Professional Licensure and Certification, which oversees the administration of more than 50 occupational licensing boards. The Board of Medicine has more than 8,700 licensed physicians.
The law permits the state licensing office to post information about malpractice settlements and employer disciplinary actions to its website only if the state Board of Medicine has acted in response to the lawsuit or discipline, according to Lindsey Courtney, OPLC's executive director.
Unless the board takes action, state law prohibits the OLPC from disclosing problems publicly, she said.
"When the Board receives reports of malpractice settlements and hospital disciplinary actions, these reports are considered complaints, which are confidential under New Hampshire law," Courtney said in an email.
New Hampshire disciplines doctors less often than any other state in the country, according to a study by Public Citizen, a national nonprofit.
The study calculated the average number of serious disciplinary actions taken by state boards per 1,000 physicians. Kentucky, the state that disciplined its doctors most often, had seven times as many serious actions against doctors per capita than New Hampshire between 2017 and 2019.
The Public Citizen report found no evidence that differences in disciplinary rates could be explained by differences in the competence or conduct of the doctors practicing in the various states.
System under fire
The Board of Medicine is like a dungeon, said Concord attorney Chuck Douglas, who brought a whistleblower suit against Catholic Medical Center in Manchester alleging kickbacks and Medicare fraud.
"If you send in a complaint, it's never coming back out," Douglas said.
The Union Leader in February reported on Douglas' lawsuit, including allegations of substandard care by heart surgeon Yvon Baribeau.
The Boston Globe recently wrote several stories focusing on Baribeau's conduct, how the hospital handled staff complaints about him, and the lack of transparency by the New Hampshire Board of Medicine about his record.
Catholic Medical Center President and CEO Alex Walker this month announced the hospital would hire an outside firm to conduct a review of clinical oversight and accountability, peer review and reporting processes.
To improve the performance of state boards of medicine, Public Citizen recommended in its 2021 report "greatly reducing the number of physicians on medical boards and replacing them with members of the public with no ties to the medical professionals, hospitals or providers."
The current nine members of New Hampshire's Board of Medicine include six physicians and one physician assistant.
Settlements stay secret
Manchester attorney Francis G. Murphy, who has been trying malpractice cases for 30 years and secured a $2.7 million payout in one malpractice case in New Hampshire, said every settlement agreement includes a confidentiality provision.
"They don't want the public to know they're paying out these settlements," Murphy said.
That's what happened with a malpractice suit brought by a woman the Union Leader is calling Anne to protect her privacy.
There was almost no way someone in Anne's position could have known that the doctor she saw at the Elliot Hospital in Manchester made payments to two other New Hampshire patients before she arrived in the emergency room with a stroke. The Union Leader learned of the case not from the New Hampshire Board of Medicine website, but from the Massachusetts board.
A confidentiality agreement prevented Anne or her attorney, Suchecki, from discussing her suit. All information about the case comes from court records:
Anne, who was in her early 30s when she was rushed to the emergency room, had a CT scan that ruled out one kind of stroke. But the emergency room doctor she saw decided not to ask for a consult from a neurologist and determined her weakness and numbness did not have a physical cause.
The doctor gave her a migraine medication — which can be dangerous for people having strokes — and told her to go home. Only after Anne fell on her way out of the hospital was a neurologist called.
Tests later showed Anne had several small strokes. She spent years recovering from the damage after the strokes went untreated for too long.
Anne sued the emergency room doctor, Dr. Marc Weiner, in 2015. The case was settled for an undisclosed amount in 2018. Efforts to reach Weiner through his former employer were unsuccessful.
Weiner made malpractice settlement payments in 2005, 2011 and 2018 for New Hampshire cases, according to the Massachusetts website.
Details hard to find
Dawn Fernald, a spokesman for SolutionHealth, the parent company of the Elliot Hospital and Southern New Hampshire Medical Center, said in a statement that doctors are subject to a multi-stage background check before they are hired and a review every two years that includes an examination of malpractice claims and licensing-board actions.
"We stand behind our processes put in place to review the quality care we provide," Fernald said. "We want our community to know they can trust in our ability to research and use our access to data and metrics to ensure our providers are meeting set standards and protocols and continuing to provide high quality care."
Fernald said "the process available for the public to review a provider's malpractice history is faulty given the availability or unavailability of data and is prone to misinterpretation and we feel that wrong interpretations can be drawn using this limited data."
Anne's case and two other malpractice payments Weiner made aren't noted on the New Hampshire Board of Medicine's public website. To find out about Anne's experience, you would have to look through the state court system. Only the vaguest of information from the courts is online. More clarity is available only in-person at New Hampshire's courthouses.
"Other places are much more transparent than we are" said Rep. Jeffrey Salloway, D-Lee. "You have to go digging in New Hampshire."
That kind of digging is not required on the website of the Massachusetts Board of Registration in Medicine.
"In Massachusetts, anyone can go on the Board of Medicine's website and look up to see if a doctor has had any malpractice suits against him or her, and you can look up to see if a doctor has been disciplined," Suchecki said. "That's just completely missing in New Hampshire."
A review of the Massachusetts website by the Union Leader showed the problem is widespread.
The Union Leader found at least 29 New Hampshire doctors, all but two with active medical licenses, who have paid out in medical malpractice cases in New Hampshire, according to the Massachusetts Board of Registration in Medicine website. They include doctors from Nashua to Holderness, at the state's largest hospital to a tiny Hampstead office.
More than 50 other doctors licensed in New Hampshire have made malpractice payments in states other than New Hampshire, including Wyoming, Maine, New York and Massachusetts.
Malpractice suits rise
From 2011 through mid-2018, 432 malpractice payments totaling $163 million were made in New Hampshire, an average of $377,678.
At least five settlements were for $4 million or more, according to a 2018 report from the New Hampshire Insurance Department.
More recent figures are not available. The state law requiring the New Hampshire Insurance Department to collect information on malpractice cases as part of an annual report on medical malpractice screening panels expired in 2018, said department spokesman Andrew Demers. A rule authorizing the department to collect information from insurance companies later was repealed.
More people have filed malpractice suits in the state's courts in recent years.
The two most recent years of data show more than 70 malpractice lawsuits filed annually, compared to 50 filed annually a few years earlier, according to Susan Warner, communications manager with the state's judicial branch.
Because of confidentiality provisions that frequently accompany malpractice settlements, it's rarely possible for the public to know how much was paid out, and by whom.
Murphy, the Manchester malpractice attorney, said other kinds of investigations into professional negligence or wrongdoing take place out in the open.
If something goes wrong with a jet that crashes, then "everything is done in daylight," with the investigation conducted in public, Murphy said.
With the medical community, "we keep things behind closed doors," he said.
States keep track
States, including New Hampshire, share information with each other, but not always with the public.
Courtney, with the state licensing office, said her office and the Board of Medicine get information about malpractice payments from a database maintained by the U.S. Department of Health and Human Services. Medical malpractice payers are required to report payments for malpractice claims or judgments to the federal government.
The state licensing board also shares investigative information with other state licensing agencies, as authorized by the Board of Medicine, Courtney said.
Information from other states isn't always included in New Hampshire's public-facing records.
For example, two settlements involving Nashua doctor John V. Flannery Jr., including a $1 million settlement in Georgia in 2016, are not listed on Flannery's license page in New Hampshire.
Georgia's licensing website lists the payment amount, and the Massachusetts website lists a 2022 payment in New Hampshire.
Johnson, the doctor who resigned from the Mayo Clinic, was required to take continuing-education courses on surgeries and patient interaction by the Minnesota medical board and was reprimanded in Vermont for not disclosing the Minnesota action. New Hampshire does not note either action. Johnson declined to comment on the medical board actions.
But in another case, New Hampshire held a hearing with another doctor, Vishal Verma, after Maryland's Board of Physicians disciplined and fined him $50,000 in 2020. Verma was not disciplined by New Hampshire, but the Maryland action is noted on his licensing page in New Hampshire.
Efforts to reach the doctors, through several current and former employers, were unsuccessful.
Payouts shrouded
A state law, RSA 329:17-c, states that when another state disciplines a doctor, the New Hampshire board "may issue an order directing the licensee to appear," to explain why the doctor should not face penalties in New Hampshire, too.
What the New Hampshire Board of Medicine does behind closed doors often stays private unless someone files a lawsuit, as in the case of the lawsuit against Catholic Medical Center.
Douglas' whistleblower's lawsuit offered some insight into the board's inner workings. Court papers stated that one of Baribeau's cases was referred to the New Hampshire Board of Medicine "but the Board reviewers were unable to discern the pertinent facts of the case from the voluminous amount of extraneous data also documented."
CMC has defended Baribeau, now retired.
Under Baribeau's profile on the Massachusetts licensing site, 20 malpractice payments in New Hampshire from 1999 to 2021 are listed.
Baribeau's New Hampshire licensing page lists no malpractice information or any information about investigations the state might have conducted.
Meanwhile, the New Hampshire Attorney General's Office is examining the laws that limit how much the state's board of medicine discloses to the public, spokesman Michael Garrity said.
"What we want to do is we want to be able to reassure Granite Staters of the entire oversight process that state government has in place," Garrity said. "So we're taking a look at it."
Privacy a priority
James Potter, executive vice president of the New Hampshire Medical Society, said the Legislature for decades has prioritized privacy on a range of issues.
New Hampshire was the last state to set up an immunization registry, and just last week, the state Department of Health and Human Services announced that residents can withdraw their COVID-19 vaccination status from the state's database.
State leaders also opposed the federal RealID, on the grounds that it required drivers to provide too much information to receive a license.
"I don't think it's an issue necessarily from the board of medicine wanting or not wanting to do anything along those lines," Potter said.
Rep. Mark Pearson, R-Hampstead, said it's part of a common theme.
"New Hampshire residents don't like their names put on lists anywhere," said Pearson, who chairs a legislative oversight committee that recently created a subcommittee to investigate and suggest possible changes in state law to improve transparency.
Steve Ahnen, president and CEO of the New Hampshire Hospital Association, said "there's always a difficult balance relative to patient privacy" and public transparency.
Other states that list past malpractice payouts on doctors' records do not include names of patients or much detail about the situation — often providing only a date a payment or judgment, and sometimes the state where the payment happened or the amount paid out.
Courtney, of the state licensing office, said the office this year spearheaded the effort to establish a legislative commission to review office operations, including its administrative support to boards, investigative processes and procedures, and communications with external stakeholders and the public. The panel already has met several times.
"OPLC looks forward to engaging stakeholders and policymakers as the State seeks to review its laws regarding transparency over enforcement operations," she said.
Public hearings soon will be held to investigate whether changes need to be made to laws governing the Board of Medicine, according to Salloway, the legislative subcommittee's chairman.
"The public is going to come out of the woodwork: 'Let me tell you what happened when I had my gallbladder operated on,'" Salloway said. "It's going to be hours. People have a right to be heard."
He hopes by November to report the subcommittee's findings to a legislative committee to decide whether to craft proposed changes to state laws.
"I think that's appropriate for the Legislature to be looking at," said the medical society's Potter. "But know we have had a history of protecting patient privacy."
