Florida's doctor discipline system not tough enough, critics say

Raven Morgan can't believe a nurse who knowingly exposed patients to the risk of infections such as HIV/AIDS can still work in Florida.

Morgan's boyfriend, John Krug, was one of 1,851 patients on whom nurse Qui Lan acknowledged reusing intravenous supplies, potentially exposing them to contact with other patients' blood. None of Lan's patients who have been tested are known to have contracted a disease as a result.

The Fort Lauderdale nurse can practice, although it's unclear if she is.

"She still has a license? I don't believe it. That makes me sick," said Morgan, a former nurse in New Jersey who now lives in Boca Raton.

Count Morgan among the patients, malpractice attorneys and consumer advocates who say Florida's system for policing the state's 66,000 doctors and 840,000 other medical professionals is feeble and ineffective.

Consumer group Public Citizen last month ranked Florida the eighth most-lenient in the nation for disciplining doctors. The ranking stems from the number of serious actions per 1,000 doctors last year, when the state revoked the licenses of 94 and suspended 18 others. The toughest state disciplined doctors at rates three times as high. The trend has been true for a decade, the group said.

Critics contend the state does not act fast enough or toughly enough against the small share of practitioners accused of substandard care, negligence, crimes or improper behavior. Too often, they say, the state lets professionals such as Lan continue practicing while officials probe allegations of crimes or serious violations and injuries.

Regulators dismiss 90 percent of complaints that patients or others file against practitioners, more than 95 percent of those against doctors. When action is taken, the state rarely imposes serious punishments, such as revoking or suspending licenses.

Virtually all of the dismissed complaints are dropped during confidential reviews by the Florida Department of Health and its panels of medical professionals, state records show. Complaints that advance to public hearings often take years to resolve and typically end in settlements in which doctors are fined or ordered to take remedial classes, critics say.

"People ask us if they should go after the doctor. We have to be honest," said Scott Schlesinger, a Fort Lauderdale malpractice attorney. "From our perspective, the system is virtually non-existent. Nothing ever comes of it."

The system is juggling more than 1,300 complaints pending against doctors. Officials said they had to dismiss dozens of cases in the past year — some involving deaths — because time ran out under a law that requires the state to bring charges within six years of the initial incident. The deadline does not apply if the doctor committed a crime, sexual misconduct, illegal drug activity or obstructed the case.

State officials and some attorneys defend the system and say the criticisms are overstated. They say any system can be improved, but contend the state focuses on protecting the public from professionals who commit the most serious wrongs, and demands remedial training for professionals who make errors.

"I don't see the evidence to support [the criticism]. We believe we are doing a good job," said Lucy Gee, the health department's director of medical quality assurance.

Gee said the process moves deliberately so it can be thorough. Cases remain secret because laws aim to keep baseless complaints from becoming public and unfairly tarnishing professionals, she said.

The state can suspend practitioners on an emergency basis if officials believe they pose a danger to the public, and they did so 248 times last year. Gee said the department moves carefully to build cases that can stand up in court. When professionals get arrested, the department sometimes takes no action and lets police take the lead.

"The boards tend to do a good job distinguishing between a problem doctor and a doctor who may have made a human error," said Steve Ballinger, a Weston attorney who defends doctors in disciplinary cases.

Last year, Floridians and agencies filed almost 11,000 complaints against doctors and about 13,000 against nurses and those practicing in 38 other medical professions. More than half were thrown out quickly because they raised issues the state has no power over, such as rudeness or billing, Gee said.

Andy Dezolt's complaint didn't make it to a public hearing. The Hollywood retiree, 79, filed a complaint last summer after his surgeon admitted leaving out two screws during hip replacement surgery three years ago. Dezolt said he now walks with a limp and has chronic pain.

Dezolt said he sent the state his medical file and X-rays showing the absence of the screws. He heard nothing more than form letters until he got a letter in January saying the case was dismissed, with no explanation. The state has a policy of not explaining why confidential cases are dropped.

"He screwed up my hip. I can't walk right," Dezolt said. "They're not going to do anything to this doctor. It's like they're calling me a liar."

Gee said she could not comment on dismissed cases.

Critics also complain that even when practitioners get arrested for serious felonies or have a track record of disciplinary action, the state sometimes lets them keep their licenses while the case is pending. Some examples:

Dr. Stuart F. Tillman, a Tallahassee anesthesiologist arrested in July and charged with soliciting sex online from a police officer posing as a girl of 14.

Dr. Joseph M. Hernandez, formerly of Fort Lauderdale, who was arrested in Lake City in February and charged with trafficking narcotic pain pills and prescribing drugs for monetary gain. In 2006, records show the state banned him from doing surgery and temporarily suspended his license because his vision was severely impaired. In 2007, he was fined $5,000 for leaving part of an IV tube in a patient's chest.

Dr. John N. Mubang, an internist in the Tampa suburb of Seffner who was arrested and charged in July 2008 with drug trafficking and prescribing controlled substances for monetary gain.

All three have pleaded not guilty, with trials pending. Hernandez and Mubang are practicing, according to their offices. Hernandez declined to comment. Mubang and Tillman could not be reached for comment, despite calls or messages left at their offices.

Lan, the Fort Lauderdale nurse, resigned from Broward General Medical Center the day she admitted to hospital officials that for five years she knowingly reused intravenous bags and tubing that were supposed to be discarded.

Fort Lauderdale police closed their criminal investigation without filing charges and turned the case over to the health department for review, a police spokesman said. Gee declined to comment.

It's unclear if Lan is working as a nurse. Her official licensing address is her home. Lan's husband referred calls to her attorney, who could not be reached for comment despite four messages left at her office.

In another case, the state took six months but suspended the license of Dr. Omar Brito Marin after finding he performed a liposuction last fall at a Weston medspa where the procedure should not have been done, leading to the death of a Miramar nurse, 37. Brito gave up his license rather than contest the action. An autopsy found the woman's death was caused by a bad reaction to anesthesia.

Attorneys who represent practitioners said the state does not, and should not, yank a person's medical license whenever a patient has a tragic result. Many bad outcomes result from side effects of treatments and from honest mistakes, said attorney Allen Grossman, a former Board of Medicine general counsel.

Grossman and others said the department's complaint unit is hampered by a lack of staff and swamped by complaints. The unit has 132 people to investigate almost 24,000 complaints a year as well as other duties.

For example, of the 44 cases handled by the medical board at its April meeting, half involved incidents from 2007 or earlier, one as far back as 2003.

"From what I see, it does not appear there are enough resources for the department to retain and keep the kind of experience it needs," Grossman said.

Officials had to start dropping old cases in June. A 2003 law gives the department six years after an incident to bring charges. At least four dozen cases were dropped initially and 28 more expired since December, but officials could not say how many had expired in all. The cases remain secret.

Time ran out on some cases because patients or agencies did not file complaints or report violations until after it was too late or just before the deadline, said department spokesman Irving "Doc" Kokol.

Other cases stalled because patients refused to let officials view their files, such as when doctors are accused of prescribing excessive pain pills to an addict. Investigators must go to court for subpoenas.

Officials have been trying to resolve old cases to prevent them from expiring. It's "miraculous," Gee said, that investigators now complete initial reviews within six months on 93 percent of complaints.

But Kevin Smith, a West Palm Beach malpractice attorney who used to defend doctors, said many cases end because overworked officials drop cases at the first sign of resistance. Regulators often dropped complaints against his clients as long as he got another doctor to sign a affidavit saying there was no error, he said.

That way, "the investigator has his butt covered with the affidavit in the file saying the case should be dismissed. They've got so many cases where they have bad guys doing bad things … the other cases just get dropped," Smith said. "Any close-call cases, [doctors] are getting away with."

Bob LaMendola can be reached at blamendola@SunSentinel.com or 954-356-4526.