February 05, 2005
Physician, heal thyself
Meet Doctor Eric Sheffey:
[Sheffey] has been sued more than 60 times and accused by patients' relatives of causing four deaths and two suicides.
Last year, administrative law judges found Scheffey had performed 29 surgeries on 11 patients that were either partly or entirely unnecessary. Two of the patients who had unneeded back surgeries died. Several others started out with minor problems and ended up permanently disabled in the course of undergoing repeated surgeries.
Late last year, the judges recommended license revocation and a $210,000 fine.
That fine, alone, was equal to half of all the money collected by the board in 256 separate decisions in fiscal year 2004.
Board members upped the fine to $845,000 on the basis of 169 violations of proper patient care they found in an examination of Scheffey patient records. The money goes into the state's general fund.
The board, which has more money for investigations and a tougher stance on medical malpractice than in previous years, was expected to accept the recommendation — but it was not a sure thing. Twice before, the board considered taking Scheffey's license. In 1995, administrative law judges recommended it — but the board voted to give him probation instead.
[Texas State Board of Medical Examiners] attorney Robert Simpson, said if the 1995 board had not given Scheffey that second chance, at least two patients "might be alive today."
Although Scheffey spent nearly half his career on board-ordered probation, he lived in a $5.8 million home near the Museum of Fine Arts and owned a private jet. He saw patients from the lower-income areas of east Harris County in his office, East Harris County Orthopedics at 9343 N. Loop East. He was one of the most prolific doctors at Vista Medical Center, a Pasadena hospital cited frequently by regulators for inadequate patient care.
In 2002, he was the top-paid doctor in the Texas Workers' Compensation program, earning $3.3 million. (In the past 1 1/2 years, Scheffey and two other top earners in the workers' comp system from Houston, orthopedic surgeon Mark McDonnell and diagnostic radiologist Joon Lee, have been barred from the Texas Workers' Compensation Commission's approved-doctor list because of questions about their medical care. McDonnell was a colleague of Scheffey's at Vista, and Lee did imaging studies on Scheffey patients.)
Scheffey, who failed his orthopedic certification exams three times, first came to the attention of state regulators in 1985, when he was arrested after 30 grams of cocaine was found in his Jaguar. (He was not convicted in that case.) Five days before that arrest, a patient died on the operating table. In 1986, the board placed Scheffey on 10 years' probation for "intemperate use" of drugs. The probation order didn't mention the patient's death.
Sure is a good thing we have caps on non-economic damages to protect us from rapacious trial lawyers, isn't it?
Posted by Charles Kuffner on February 05, 2005 to Legal matters
This guy should have been the poster boy when Prop. 12 came to a vote a few years ago. I remember reading about him the Houston Chronicle a few years ago.
When Prop 12 came out, I offered the local medical group my full support and free time in support of getting it passed--if they would begin to police themselves.
I hope no one misses that point (and I am sure you haven't) that Bush, Perry et al talk about "frivilous" law suits driving up the cost of health care. Perhaps they were referring to the 60, count'em , 60 lawsuits against just this one doctor. And they want us to believe that the medical boards are going to protect us from these people? This case proves without a shadow of a doubt that the practice of self-regulation by state boards is a complete failure.
One quack is proof that the medical tort system isn't a joke?
I'll be the first to say that I don't want hard caps on malpractice awards *exactly* for reasons like that...but I also don't think you can point to one extreme example and use it as proof that the status quo is acceptable.
Nobody is arguing that the status quo is 'acceptable' nor that Sheffey's case is proof of such. What many argue is that Sheffey's case (and others similar) are proof that the status quo is the best option available to us, because such cases are also proof that the medical boards have no intention of policing their own. Should a miracle occur and the medical boards begin practicing full accountability -- to use the current political catchphrase -- then damage award caps may then be both politically, legally and ethically feasible.
1.) The TSBME is under sunset review this session. The TMA is none too happy with it right now, and will be lobbying hard to lessen it's power. I think that we're going to see a lot more action that garners public support for the TSBME in the legislative session.
2.) I also imagine that the TMA and its constituency are thinking hard now about tort reform. I'd much rather be sued than have my license revoked. Obviously, the insurance industry is looking at this a little differently. I've talked to some physicians since Prop 12 passed, and they mention that they didn't realize that one of the effects would be that pissed off patients' only recourse would be to go to the TSBME with their complaints.
3.) Someone needs to figure out why the Texas Workers Compensation Commission kept on sending patients to this guy, why he was credentialled, and how on earth he managed to get any malpractice insurance. He's been sued over 60 times and investigated by the TSBME and the hospital still kept him on the medical staff? The National Practitioner Data Bank has been around for years now, and hospitals as a matter of record should consult the data bank before granting privileges to providers. All sorts of red flags should have gone off over this guy. I'd be gearing up for a massive negligent credentialing lawsuit if I were a hospital where he has been granted privileges.
I've long been a critic of the ineffectiveness of the State Board of Medical Examiners in policing its profession. The regulatory authority for my own profession, the State Bar of Texas, is only slightly better. And the main reason that the SBME has been so ineffective is that accused doctors have historically been extremely litigious -- it's absolutely common for them to tie up any sort of disciplinary proceedings in the courts for years and years, and in the meantime the docs keep practicing. So there's plenty of blame to go around, and plenty of room for improvement in the quasi-self-regulatory system (and the way its actions are dealt with in the court system).
Still, Kuff, I think your conclusion is a non sequitur. The arguments in favor of tort reform aren't that it will lead to more effective discipline of docs who ought to be disciplined, but that it will lead to fewer court-room home runs against those who are sued. That's argued to be a good thing because fear of home-run verdicts is thought to distort the system and increase payouts on behalf of, and premiums charged to, docs who aren't habitual offenders (and who maybe haven't done anything wrong at all).
Home-run seven- or eight-figure jury verdicts don't deter someone like Scheffey; a rogue like that is going to have his assets tucked away, and his only public assets will be those exempt from execution under Texas' generous homestead provisions. So with due respect, I don't follow your logic here.
Beldar, my point has always been that better self-policing by the physicians would have done far more to help their malpractice insurance costs than tort reform ever will, and it would have had the added bonus of keeping some unlucky patients from getting mauled or killed. This guy's been a menace for 20 years because the TSBME couldn't or wouldn't stop him. Tort reform should have been a much lower priority than tightening enforcement, but those who pushed it had other motives in mind.
Well argued, and I don't have figures to back up my subjective impressions. We certainly agree that professional self-enforcement could and should be tightened up, and I also agree with you that that would probably tend to have a useful effect in lowering malpractice payouts and thence premiums.
But I doubt it would have a very direct or big effect. The worst of the rogues, like this guy, go bare -- they're the ones who can't get any insurance at any price. It's not that the insurance companies are paying out seven-figure awards (or six-figure settlements) over and over again for the same bunch of bad apples. It's that they're paying out one or two big awards, and six or ten big settlements, for docs who may be perfectly good physicians but are in a city (e.g, Brownsville) or a specialty (e.g., ob/gyn) where the prospect of home-run jury awards are drawing the tort claims like flies to honey. If the Board of Medical Examiners were yanking the tickets from all the docs in those locations and specialties who ever got sued, the availability-of-care problems would mushroom.
I'm a luke-warm supporter of tort reform, mind you, and a huge, huge critic of the liability insurance industry in general. I personally think that a major reason for the rising payouts is that the insurance companies have turned into wimps. They've tried to cut their costs by hiring mediocre lawyers who do production-line, uncreative pretrial discovery, soak each case for every hourly-rate penny they can justify, and then crater before trial and pay huge settlements. When I started practice, the med-mal defense bar contained some of the finest lawyers in the state, and that's no longer true for med-mal or for insurance defense in general -- it's become a commodity business IMHO, with the insurers having become penny-wise and pound-foolish. Contingent fee lawyers (and I oftentimes am one of those, although not very often on PI cases) can smell blood in the water. But they're rational profit maximizers, and the way to fight 'em off is not to try to limit the quantity of blood in the water but to kill the sharks. That is, take more cases to trial, make the contingent-fee lawyers eat some zero/no-liability verdicts on their weak cases, and force them to discipline themselves more strictly, out of economic self-interest, on the cases they accept and the settlements they'll accept for those cases. That's the way it worked in the "good old days" (cue Beldar's old fuddy-duddy banjo music).
But it would be hard for the Lege to write a law that says, "Get tough and smart, you insurance companies!" They're tinkering with the controls they have in their hands. The jury's still out (so to speak) on whether, or how well, it will work. But I do believe it's a proper task for the legislature to attempt, at least experimentally, which is why I supported last year's constitutional amendment.
Fair enough. Obviously, I disagree about the solution, and I believe the desire to screw the plaintiffs' bar was at least as big a motivation as any desired public policy outcome, but I can see your point. Thanks!