South Dakota Attorney Lawyer

Dec. 1, 1999 | That an estimated 44,000 to 98,000 people a year are dying in hospitals from a combination of error, negligence, incompetence and, in a few extreme cases, criminal behavior — more than die from auto accidents, breast cancer or AIDS — should come as an urgent wake-up call to the American public, Congress and the medical profession. The National Academy of Sciences, which announced the estimate in a report released this week, decried the “stunningly high rates of medical errors” in the nation’s hospitals and called for a new federal agency to address the systemic failures to protect patients.

While these shocking estimates are new, the need for reform has long been evident to anyone who has delved into how the medical profession polices its ranks. In “Blind Eye: How the Medical Establishment Let a Doctor Get Away with Murder,” I told the horrifying story of Dr. Michael Swango, a handsome young physician who was convicted in 1985 of the non-fatal poisoning by arsenic of five co-workers at a hospital in Illinois. Yet he resumed his medical career, gaining employment as a physician in South Dakota, New York, and then in Africa until he was arrested in the U.S. on minor fraud charges two years ago. At every step, suspicious deaths accompanied him.

Even before the poisonings in Illinois, Swango was linked to suspected murder at the Ohio State University hospitals and was investigated for allegedly causing the respiratory arrest and near death of a patient. The patient, a nurse herself, was revived by other doctors and gave an account of what had happened. Two other eye-witnesses placed Swango at her bedside just before the incident. When questioned by doctors at Ohio State, Swango gave three different, inconsistent versions of the incident, including the claim he had never been in the patient’s room. Yet the doctors believed Swango, officially exonerated him, and wrote in the patient’s permanent record that she suffered a paranoid delusion that a doctor had tried to kill her. Swango, meanwhile, was later given glowing recommendations by some of the same doctors who investigated him. The FBI now believes Swango ranks among the most prolific serial killers in American history.

If a Swango could maintain a medical career, as he did for well over a decade after his poison conviction, one shudders to think how easily mere incompetence or physical impairment might go unchecked. The problems are indeed systemic, since without the unwitting collaboration of his peers, a Swango could never have continued to practice medicine. Since telling Swango’s story, I have been contacted by scores of doctors with their own stories of egregious misbehavior and incompetence that went unchallenged by fellow physicians, in most cases for the same complex motives that enabled Swango to escape detection: fear of liability, first and foremost, but also fear of scandal, of damage to institutional reputation, and from a strong and sometimes misguided sense of collegiality that leads some doctors to trust the word of a fellow physician over anyone else. This anecdotal evidence is amply confirmed by the findings of the National Academy released this week.

There is a cure, and a relatively easy one. A new federal agency may not even be necessary. Patients are meant to be protected by the federal National Practitioner Data Bank, established by Congress in 1986 to collate information on doctors who are disciplined by their peers and who are subject to adverse malpractice verdicts. Under the law, hospitals are required to check with the data bank before granting hospital privileges to any licensed physician. In theory, this should have prevented a Swango from ever being hired once he was convicted of poisoning co-workers, yet obviously it did not.

Unfortunately, despite its good intentions, the effectiveness of the data bank is a national disgrace. A report prepared for the department of Health and Human Services covering the years 1990-1993 indicated that 75 percent of the nation’s hospitals had never reported a physician. In South Dakota, an astounding 93 percent of the hospitals had failed to report. In addition, thanks to intense lobbying by the AMA and others in organized medicine, the loopholes in the law are enormous.

Neither hospital in South Dakota and New York even checked with the data bank about Swango before giving him hospital privileges. They didn’t have to, because he was an “unlicensed” physician and only “licensed” physicians have to be reported. Thus, the very element of the profession that poses the greatest danger — doctors whose licenses have been revoked — aren’t covered by the law. Nor are doctors who have never been licensed, such as interns and residents. Nor are doctors who are quietly allowed to “resign” rather than face disciplinary action. Criminal charges aren’t required to be reported unless they lead to disciplinary actions by other doctors