By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
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But nothing was ever his fault. For example, Buch signed a blank sheet giving orders for patients while he was out of town and then blamed his physician's assistant for using it to discharge patients from the hospital.
"No untoward effect happened," Buch said in a letter to the hospital CEO in September 1998. Though he had signed the order, Buch blamed his assistant for not bringing it to his attention. The convoluted reasoning was classic Buch.
"Even if he's wrong, he's going to prove he's right," says his former nurse. "Most surgeons are that way. But most surgeons know there's a wall. There's a limit to how far you can take that. He never bends from that position."
As the controversy built in 1999, on April 25, Buch, driving his Jeep Cherokee, collided with another vehicle, killing the passenger and rendering the driver a quadriplegic. Accused of negligent homicide for running a red light, Buch was sued for wrongful death. Buch did not admit wrongdoing, saying the accident was the other driver's fault. He was no-billed by a grand jury and a lawsuit for wrongful death was settled out of court.
The Texas Tort Reform Act of 2003 was passed by the Legislature to solve the perceived crisis of physicians being driven from the field by frivolous claims. Malpractice lawsuits dropped by 50 percent almost overnight. With caps on non-economic damage—pain and suffering—of $250,000, plaintiff's attorneys no longer could afford to pursue claims against doctors on a contingency fee basis.
Aggrieved patients now must obtain within 180 days a "4590i statement" from an expert that provides a fair summary of the standard of care received. Those are submitted to a judge who decides whether there is enough cause to go forward with a lawsuit.
Most 4590i claims do not develop into lawsuits. Plaintiffs' lawyers have trouble finding doctors who will testify against other physicians, and proving violations of standards of care, especially in complex cases, can be near impossible.
The thinning of the plaintiffs' attorney herd has had an impact on complaints reported to the Texas Medical Board. From fiscal year 2006 to 2007, complaints against physicians went up by 1,000 to 6,800.
"We don't know exactly why that is happening," says Mari Robinson, the board's director of enforcement. "We're hearing anecdotally that when plaintiffs' attorneys don't take a case, they may tell the client to call the state board."
Of complaints filed, 65-75 percent concern "standard of care" or negligence, Robinson says. Impaired physicians—drugs, alcohol, mental illness—account for less than 5 percent.
Very few physicians lose their licenses; in the fiscal year 2006, 335 received disciplinary actions, 89 administrative penalties, 11 temporary suspensions and 41 license revocations.
As a result of tort reform, the medical board received extra funding and staff to investigate physicians who were impaired or the subjects of frequent malpractice claims. The industry would police itself.
Soon after the bill was passed, the medical board ran a "master report" of all physicians who had more than three lawsuits of any kind. Every doctor who had more than eight "adverse actions"—lawsuits, loss of privileges or an investigation, all which must be reported to the NPDB—came under scrutiny.
"It was a massive undertaking to make sure there was nobody falling through the cracks," Robinson says. "What we are looking for is a pattern of multiple lawsuits over time."
The medical board now looks at all physicians with more than three "adverse actions" reported to the NPDB in five years, though investigation is discretionary at that point.
"There may be a doctor with only three [lawsuits], but all three had a payout," Robinson says. "Another doctor may have five with no payout."
The number of "adverse actions" on a physician's record with the NPDB may prompt hospital administrators to submit the doctor to more scrutiny.
The Texas Hospital Association does not keep statistics on or track doctors who have had privileges revoked by hospitals, says Charles Bailey, general counsel for the association. Before allowing a physician privileges, all hospitals have a thorough credentialing process, which includes contacting the NPDB, Bailey says.
Once a doctor is on staff, privileges are usually renewed with little fanfare.
But Buch's operating room antics, his treatment of subordinates and the revelations about his personal life built to a storm within the St. Paul community of physicians. St. Paul had been named with Buch in several malpractice lawsuits, but that wasn't the only issue. Administrators were also concerned about potential lawsuits from nurses over a hostile work environment.
In May 1999, when Buch signed his reapplication for privileges—attesting incorrectly that he had no current or pending malpractice claims, suits or settlements, and had no investigations by a hospital, state licensing agency or NPDB the previous two years—he stepped into a trap.
At first it looked as if his reapplication for privileges at St. Paul was perfunctory. An initial peer review panel issued a recommendation to the hospital's Medical Executive Committee that Buch's privileges be renewed for one year and that he be given a formal reprimand for the inaccuracies on his application.
Noticing that Buch had not included in his reapplication a malpractice suit that had also named St. Paul, the credentials committee requested that he provide detailed information about new or pending malpractice suits and any state, health care agency or federal investigations, required under hospital bylaws to be reported to the administration within 15 days of filing.
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