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Complaints against doctors kept private by state agency

By Linda Williams. and Mike Headrick | Posted - May 20th, 2013 @ 11:25pm

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SALT LAKE CITY — From concerns about malpractice to possible criminal acts, if you have a complaint against a doctor you're encouraged to file it with one state agency.

However, an investigation found those complaints are considered private unless formal action is taken. That means the public can never know complaints exist or how many have ever been filed.

"Really, websites (are) how we found most everything out, or word of mouth through friends," said Katie Harrison.

Like many people, that is how Harrison's hunt for a fertility specialist began — research online and a phone call to a friend.

"We saw that he had a great website, great references (and) great stats," she said. "He was supposed to be a really great doctor."

It was enough to convince the Colorado aesthetician to travel to Utah for an appointment. Harrison said the first visit went well, but when she went back again, she said everything changed. She claimed the doctor performed a procedure that "caused a lot of pain, extreme pain, enough to where I passed out and had a seizure on the table."

"When I came to ... I was still in a lot of pain but he continued with the procedure," she said.

After that visit, Harrison received a phone call from a friend.

"We found out that he's served jail time for multiple counts of misconduct with his patients and with his staff. A lot of sexual misconduct," she said.

That doctor served eight months in jail and his license was put on probation for five years. After he'd met certain conditions it was "reinstated with full privileges" and he returned to work in the same field of medicine.

Harrison said she never found that doctor's history online because he was practicing under a different name.

"We'd not only spent time and money with this man, but it's vulnerable the position that you put yourself in, in this kind of doctor's care, really is vulnerable," she said.

Harrison filed a formal complaint with the Utah Division of Occupational and Professional Licensing (DOPL). She received an email back saying that doctor was "not violating any law" by using a different name. She then received a letter stating no formal action was taken, the case was closed and "the complaint was handled informally but appropriately, which is not public information."

Because it's not public information, the name of the doctor can't be revealed. DOPL took no official action and therefore the complaint is considered private and protected, meaning the public can never know it was filed or if a history of complaints exists.

"Should more be out there? Should more be done? You know, that's always a balancing act," said Francine Giani, executive director of the Utah Department of Commerce, the agency over DOPL.

When asked if keeping complaint information private was a risk to patients, Giani said, "No question that that is a concern."


"I just think that you run the risk by throwing it all out there of, frankly, ruining someone's reputation if the complaints turn out to be not valid," she said.

Giani said the biggest concern is frivolous complaints from people using the system to get back at practitioners they don't like — like a neighbor who doesn't clean up their yard.

"They think, ‘I'm going to get back on this guy and I'm going to go on the website and I'm going to send an anonymous complaint,' " she said.

Each time a complaint comes in, frivolous or not, Giani said it is issued to an investigator who talks to both the complainant and the accused practitioner. Then they send their recommendations to a DOPL licensing board.

"If they felt that X, Y, Z person went too far or it wasn't that egregious, he would make that recommendation," Giani said. "It is possible that the board would go further. It is possible that the board might pull it back."

If the board pulls back the complaint remains in a private database. That type of secrecy is raising concern half a world away in Australia.

A recent study by researchers at Melbourne University found 3 percent of doctors were responsible for 49 percent of all complaints filed with Australian health commissions.

"The current veil of secrecy over most complaints (which avoid publicity by never reaching the stage of disciplinary proceeding) allows repeat offenders to continue unheeded," Ron Paterson, former New Zealand health and disability commissioner, wrote in an editorial published in BMJ Quality & Safety in Health Care.

If a complaint's been filed we should be aware of that. No matter what it is we should be aware. It's only fair.

–Katie Harrison

Giani said her investigators do look at past complaints to see if a doctor is developing a pattern of abuse.

"If you've got numerous complaints, I dare say that those are the ones that kind of get a little closer to the top," she said. "We think, ‘Wow, we better take a look at this. It's the same kind of complaint. Let's take a look.' "

However, there is no way of knowing how often that happens because that information is also private record.

"If a complaint's been filed we should be aware of that," Harrison said. "No matter what it is we should be aware. It's only fair."

Giani said the only way complaints could change from private to public record would be an order from the legislature.

"For the most part, I'm pretty pleased with where DOPL is today," said Sen. John Valentine, chairman of the Occupational and Professional Licensure Review Committee. "(I) haven't always been, but today they seem to have hit that right balance."

He said the current DOPL administration "seems to be resolving cases and saying yes there's merit or no there's not merit." He said licensees do not give up their rights simply because they're licensed to practice.

Like everyone else, he said they are given due process "that protects the innocent until such time as the evidence produced says, ‘Yep, they have messed up.' "

"Allegations against someone which are unsubstantiated don't have any relevance as far as the license of that person is concerned," he said. "If they're substantiated then it should be made public, and I think it is made public under our present statutes."

If DOPL takes formal disciplinary action against any practitioner, that information is posted on its website. Giani said her team takes each complaint seriously, even though they are private.

"I would hope in the end that we don't make mistakes," she said. "That would be a hard one for me to live with, actually."

As for Harrison, she warns others to do as much homework as they can so they don't end up in a situation like hers.

"I feel like now, at this point, I have to do a background check on my doctor," she said. "I don't feel like we should have to do that. We should be able to trust these professionals."

After her interview Giani made a change that allows DOPL to ask practitioners to go by the name listed on their license but only if formal action is taken. It is not law yet, but Giani said she will request that change during the next legislative session.

As for complaints against doctors, those will still be private, but is something one Utah hospital is trying to change, at least for its own patients.


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