Failing grades

How well does your state protect patients?

In Minnesota, state law affords zero tolerance for doctors who are convicted of felony sex offenses: They are banned from practicing medicine. In 36 other states, no such ban exists.

In Iowa, state law says women get half the seats on the board that licenses and disciplines physicians. But in most states men control medical boards, and only half the states give consumers a strong voice in deciding whether doctors who have hurt patients should be allowed to stay in practice.

In Texas, state law demands that doctors undergo rigorous criminal background checks before they’re licensed and while they’re practicing too. But 14 states still do not require criminal checks before giving a license to someone who can prescribe powerful drugs and ask patients to strip down and submit to being touched.

In every state, patient protection is supposed to be the prime directive when it comes to licensing and disciplining doctors. But a 50-state examination by The Atlanta Journal-Constitution found that only a few states have anything close to a comprehensive set of laws that put patients first.

“Instead of looking out for victims or possible victims or protecting our society, we’re protecting doctors,” said Rep. Kimberly Williams, a member of the Delaware General Assembly, who sponsored a patient-protection bill last year that was blocked with a veto.

As part of its ongoing “Doctors & Sex Abuse” series, the AJC studied five categories of laws in every state in the nation to determine which states are the best — and the worst — at shielding patients from sexually abusive doctors. The statutes examined covered everything from the duty to report bad doctors and the power to revoke the licenses of the worst, to the laws that decide who gets to serve on medical licensing boards and how much information consumers can know about doctors who have gotten into trouble. (Read how a Georgia doctor regained his license after serving time in federal prison for exchanging prescription drugs for sexual favors.)

Not a single state met the highest bar in every category the AJC examined. Meanwhile, in 49 states and the District of Columbia, multiple gaps in laws can leave patients vulnerable to abusive physicians.

The AJC’s findings explain how it’s possible for a doctor who has served time on felony charges, molested patients or demanded sex in exchange for prescription drugs to continue seeing patients: In most states, there’s no law against it.

Powerful doctor lobby

At state capitols across the country, lawmakers designate “doctors of the day” and physicians who want to lobby sometimes show up in white coats with stethoscopes. The voices of doctors – who are widely trusted both inside exam rooms and in the halls of legislatures — tend to prevail when states debate medical matters.

In Louisiana, the AJC found physician discipline laws that are among the most doctor-friendly in the nation. Even so, Louisiana doctors complained that the state’s medical board staff was too aggressive with its investigations. So last year, the doctors’ lobby asked for changes to make the law more favorable for doctors, with the goal of reining in what can happen when a patient files a complaint.

Jennifer Marusak, a lobbyist for the Louisiana State Medical Society, said lawmakers gave doctors what they needed and deserved: due process rights and basic protections when they are accused of wrongdoing and their highly valued careers are on the line.

“If you spent your whole life, basically since you were 18, training to be a physician, what are you going to do?” Marusak said. “I mean, what else are you going to go do?”

It often takes a horrific case or a public expose to get pro-patient legislation passed.

After revelations that Maryland had licensed a doctor who had spent time in prison for rape, the state last year began requiring criminal background checks of physicians.

Rhode Island reformed its medical board after a scandal in the 1980s: Regulators didn’t take prompt action against a doctor who profited by implanting pacemakers in patients who didn’t need them. The state responded by giving consumers a powerful share of seats on its disciplinary board and requiring that one consumer member be a medical malpractice attorney who represents patients.

Now, one lawmaker is pressuring the state to dial back.

State Rep. Michael Chippendale said doctors today need protections from a state licensing board that can be overly aggressive and unfair. He called the changes made in the 1980s an example of how his state has “refined and perfected the knee-jerk reaction.”

Among the changes he wants: a return to a disciplinary board made up mostly of doctors.

“I do not think people who spent 12 to 18 years of their lives in secondary education and doing internships to become medical professionals need to have their license stripped away by someone who sat through a 45-hour real estate course,” he said.

Bright lines for offenders

In most states, doctors dominate medical licensing boards and have the authority to decide who is fit to practice medicine and who isn’t. Usually the laws do not restrict a board’s authority by mandating certain punishments for some types of violations. Many licensing boards — including Georgia’s — say that’s how it should be.

“Having a bold, bright line saying a felony equals this or that is not good policy,” said Bob Jeffery, executive director of the Georgia Composite Medical Board.

Jeffery said criminal courts punish offenders and civil courts can compensate victims. Medical regulators, he said, have a different role.

“A licensing board is charged with making sure a (doctor) is safe to practice and that patients are protected,” he said.

With no legal prohibition standing in the way in most states, doctor-dominated medical boards often decide that doctors busted for abusive or illegal behaviors can be rehabilitated and safely returned to exam rooms.

New Jersey licensed a doctor convicted of sexual offenses with four patients. Kansas licensed a doctor imprisoned in Ohio for a sexual offense involving a child; that doctor later lost his Kansas license after making anonymous obscene phone calls to patients. Utah licensed a doctor who didn’t contest misdemeanor charges of sexual battery for intentionally touching the genitals of patients, staff members and others.

Minnesota is among the few states that took some of those decisions out of regulators’ hands. There, physicians who are convicted of felony sexual offenses are automatically and permanently revoked.

California requires that a doctor’s medical license be revoked if he is a felony-level registered sex offender.

The law grew out of the experiences Rudy Bermudez had while he was a member of California’s medical board.

A former parole officer who had supervised sex offenders, Bermudez said he disagreed repeatedly with physicians on the California board about whether doctors who had gotten into trouble should be barred from medicine, especially those who had molested patients.

“When they were approving these individuals to regain their licenses, it was really upsetting,” he said.

Bermudez said the board was especially forgiving of doctors who had gone to top-flight U.S. medical schools, like most board members had. It was hard, Bermudez noticed, for these doctors to kick someone out of medicine who had so much in common with their own lives.

When Bermudez was later elected to the state legislature, he sponsored and won passage of his bill to ban sex offender doctors from practice.

“I wasn’t going to have it anymore,” Bermudez said. “I was tired of watching these cases go through.”

Consumer voices

The Federation of State Medical Boards, which represents regulators in every state, recommends that at least one-fourth of board seats go to consumers.

“You want to put people on the board who know the profession, but you also want them to regulate their own profession,” said Georgia state Sen. Renee Unterman, who chairs the state’s Health and Human Services committee and said boards need to protect consumers. “The problem is always the fox guarding the henhouse.”

Georgia’s medical board has 13 doctors and just two consumer members.

Mark Bowden, executive director of the Iowa Board of Medicine, said it’s the public board members who keep the focus on the patients and public accountability. “They’re the ones who raise their hands and say ‘That’s just not right.’ ”

But the AJC found that only about half the boards across the nation have the kind of consumer representation the federation recommends.

Mississippi has three “consumer committee” members but doesn’t let them vote. Louisiana does not have a single consumer member on its board.

“It has been discussed at the legislature and we’ve been able to convince them it was not necessarily a good idea” said Marusak, the medical society’s lobbyist.

Requiring doctors to report dangerous colleagues is a measure that can protect patients. That’s because physicians are often the first to realize that a colleague drinks too much, sleeps with patients or hands out narcotics like a drug dealer.

In Georgia and 19 other states, however, doctors are not required to notify medical boards about possible violations by fellow practitioners.

In contrast, Iowa requires physicians to report competency and conduct concerns about fellow physicians. It is among the rare states that has sanctioned doctors for failing to report.

Lobbying for patients

Heather Lynette Sinclair never imagined herself as a lobbyist. But the Maryland mother uses Facebook and YouTube to push for patient- protection legislation. Her motivation is personal: She says she was sexually abused by a therapist in Maryland who concealed a criminal conviction from the licensing board.

Today, her agenda includes more rigorous background checks for all health care providers, consumer-friendly websites that show disciplinary actions, and laws that make it a crime for any health care provider to have sexual contact with a patient.

“Health care consumers need to know that we’re on their side,” she said, “that if they are on the exam room table and they are sexually assaulted by their providers that we’re going to believe them to the point where it is going to the criminal justice system, just as if they were on the street when they were assaulted.”

At a time when criminal background checks are routinely required for volunteer work, more than a dozen states still don’t require them for doctors applying for a license to practice. Among them is New York, where lawmakers this year rejected a proposal to require them. Georgia, which also doesn’t require background checks, simply asks its applicants: Are you a criminal?

An even harder sell is Sinclair’s goal of getting laws making it a crime for doctors to engage in sexual contact with patients. The AJC found that about half the states have laws that criminalize sexual contact between therapists and patients. That wave of laws passed after studies showed that psychiatrists and other therapists were sexually exploiting vulnerable patients. In those situations, the laws say, patients cannot give meaningful consent to sex.

But the AJC found that just a handful of states criminalize sex between all doctors and patients — something that is clearly forbidden by medical ethics.

Delaware has some of the nation’s strongest patient-protection laws, including the one that covers  therapists. Representative Williams pushed last year to take criminalization to that next step after Sinclair reached out to her on social media.

Williams was gratified to see the legislation, which would have made doctor-patient sexual contact a felony, pass through both chambers. She was on vacation when she got the news that left her shocked: The governor was vetoing her bill, saying he had concerns that the legislation could have covered consensual situations. He also said current law adequately addressed the issue.

To Williams, who has continued to study the issue, patients remain vulnerable. She is finding that medical licensing officials don’t even make it easy for patients to find out if their doctor has a disciplinary record – and what the details are. Too often, she said, bad doctors are given a pass. Now, instead of waiting for 50 states to enact laws to protect patients, Williams thinks the federal government should step in.

“As a society, we don’t take sexual misconduct, sexual assault and sexual abuse seriously enough,” Williams said. “These are bad, bad crimes they are committing on people and we do not treat them that way.”

— AJC staff writers Danny Robbins, Johnny Edwards and Lois Norder contributed to this article.