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Lawsuit spotlights medical disclosure
Craig Jarvis, Staff Writer
During the 20 years Dr. Wally Evans practiced medicine, more than 60 of his patients complained about sexual misconduct. He was in a program for physicians with substance-abuse or mental-health problems. Regulators, insurance companies and business partners all knew about his conduct.
But it was only after 19 women sued him that Evans gave up his medical license.
Now, some critics inside and outside the profession are asking: Why did it take so long? And why didn't patients get earlier warning?
Evans quit his practice a few days after the first lawsuit was filed in July 1995 and surrendered his license in February 1996.
The lawsuits - settled last week for a confidential amount after a jury found Evans was liable in six cases last December - amplify a long-running debate about physician oversight. Some say there needs to better supervision and the public should have an easier time finding out about errant doctors.
"All the information that insurance companies and other doctors have about their colleagues is inaccessible to patients," said Elizabeth Kuniholm, the women's attorney, who is scheduled to discuss the case on ABC's "Good Morning America" this week. "Patients have a right to know that information."
But the recent trend has gone in the other direction, giving more protection to doctors and less to patients hurt by physicians' mistakes or misconduct.
In 1996, state lawmakers made it more difficult to sue for malpractice and limited the amount of punitive damages.
A 1998 state law hides from plaintiffs' attorneys the performance reviews that doctors conduct on other doctors. Kuniholm's case against the HMOs was built on those kinds of internal records, which revealed behind-the-scenes maneuvers that circumvented the oversight process.
Kuniholm says that law and the cap on punitive damages would make it impossible to sue Evans with the same results today.
The NC Medical Board, which regulates doctors, is trying to make some records more accessible. It also wants more authority to discipline doctors. The agency is pushing state legislation this year that would give it more options to deal with problem physicians. Now it can only revoke or suspend licenses.
The proposal would let the board put doctors on probation and require them to pay fines, make restitution, seek training or treatment or even provide free services. The bill also would make it a felony to practice without a license and raise fees the board plans to use to pay for more investigations.
This month, the medical board began improving its Web site to make it easier to see a doctor's entire public file, including detailed disciplinary orders. The site didn't exist while Evans was practicing and still doesn't disclose what he did wrong.
But a good Web site does not necessarily mean adequate supervision. This month, the Washington-based consumer watchdog group Public Citizen found there was no connection between good Web sites and states that aggressively discipline doctors.
"Most states are doing a terrible job disciplining doctors," Dr. Sidney Wolfe of Public Citizen said. "There would be thousands more identified if they did as well as they should."
Doctors, however, say they have legitimate concerns about the move toward greater disclosure.
Bob Seligson, chief executive officer of the NC Medical Society, a physicians' professional group, says the peer-review process should be kept private. Caution must be used in publicizing disciplinary records that might not be accurate or that need the proper context for people to make judgments, the society says.
More doctors would go unpunished if oversight committees of physicians could not have frank discussions, Seligson said. "It's not a good-old-boy club; it's a group of professional doctors who ask tough questions," he said.
During the period when the medical board began hearing about problems with Evans, his longtime personal psychiatrist served as its president and as a board member. The psychiatrist, Nicholas Stratas, says there was no conflict. He said he recused himself when the complaints came before the board and he didn't know the outcome.
Stratas said the impaired-physician program for substance abuse and mental disorders, which was started when he was on the board, helps the agency determine whether a physician is a threat. Evans was enrolled in the program in 1994, according to trial testimony and exhibits. He acknowledges that for years he injected himself with morphine for his migraines.
Kuniholm calls it a safe harbor for doctors to avoid discipline, but the medical board insists physicians are not automatically referred to the program for sexual misconduct. Besides the medical board, the insurance companies that included Evans in their networks also received complaints.
Blue Cross and Blue Shield of North Carolina said it took appropriate steps to deal with him. Spokeswoman Lynne Garrison disputes the women's criticism of an uncaring, profit-obsessed HMO.
"We take very seriously any complaints we receive about doctors, hospitals and any other health-care provider," Garrison said. "We aggressively investigate and resolve complaints we receive from our customers."
Faced with patient complaints, Dr. Don Bradley, the senior medical director for Blue Cross' Personal Care Plan, at least twice recommended that Evans be dropped from the HMO network, but that never happened, according to his trial testimony and internal records the lawsuits uncovered.
Evans was Bradley's predecessor at Blue Cross, working as a part-time medical director from 1984 to 1986. Evans turned more than once to Bradley's superior, Earl Rideout, asking him to intervene, according to testimony and court documents.
At one point during Bradley's inquiries, Rideout assured Evans that if he cooperated, the complaints could be resolved without having to get the HMO's physician oversight group involved.
Garrison said Evans' ties to the company did not have any bearing on how it handled the complaints.
Maxicare, another HMO, sent complaints it had received to North Carolina Medical Management, which handled paperwork for several hundred physicians.
Evans and another family practice physician he had known since the mid-1980s, Dr. C. Franklin Church, started the company, which was located next door to Evans' practice, Cary Family Physicians. Evans was still one of its officers in 1994 when Maxicare told Church to investigate the first patient complaint about Evans it had received.
The first draft of the report to Maxicare was written on the letterhead of Evans' medical practice. When he testified in the trial, Church could not explain with certainty why that had happened, but he said he thought that he - not Evans - had written it.
To Kuniholm, it illustrates how the entire process was inadequate.
"The really troubling issue you have with HMOs is the fox guarding the hen house," she said. "An HMO and everybody employed by an HMO ... has a financial interest in keeping it going, and that may be contrary to the interest of the patient."
Plaintiffs' attorneys and doctors support a bill - passed by the state House and before the state Senate - that would hold HMOs as accountable as doctors.
"They decide whether somebody gets care or not, gets tested or not, whether this or that procedure is authorized," said Rep. Joe Hackney, the Chapel Hill Democrat who sponsored the bill. "There just ought not to be somebody making decisions who does not have a duty of ordinary care."
Andrew Watry, who took over the NC Medical Board in 1998, acknowledges that the Evans situation could have been handled better and says he wishes the board's order clearly said that Evans lost his license for sexually abusing patients. But Watry defends the board's ability to investigate and punish errant doctors.
"I sort of bristle at the notion we need some sort of massive overhaul of the licensing system," he said.
EXAMINING DOCTORS: If you want to check out your doctor, visit www.docboard.org/nc on the Internet or call (800) 253-9653.
© 2000 by The News & Observer Pub. Co. Reprinted with permission of The News & Observer of Raleigh, North Carolina. Reproduction does not imply endorsement.