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A Binding Process ; Regulating Health Care: a Single Sentence in Virginia Law Could Spell Trouble for Patients.

Posted on: Wednesday, 13 April 2005, 03:00 CDT

A one-sentence change 12 years ago in state law has stalled disciplinary measures in scores of health profession actions, jeopardizing patient safety and leaving oversight boards powerless to take definitive action for months.

The change, requiring an intermediate hearing, was a part of sweeping revisions to the state's Administrative Process Act in 1993 that were designed to bring fairness and due process to rule making and disciplinary actions taken by a host of state agencies.

Barely noticed at the time it passed, the provision has forced long delays in up to 1,200 serious regulatory actions in just five years, some involving patient deaths and allegations of gross negligence.

It also places huge pressures on administrators to choose between suspending licenses in emergency actions with no immediate hearing or resorting to intermediate but mandatory administrative hearings that can take months to resolve while a practitioner keeps his or her license.

"The boards should have the ability to dispense with the informal process" that must be undertaken under current law, said Robert A. Nebiker, director of the Department of Health Professions. "The public will be better protected."

The law most directly affects Nebiker's department that oversees about 275,000 license holders and 13 health boards, ranging from the board of medicine to those that regulate social workers, dentists and funeral directors.

The regulatory change is at the core of long-standing complaints about delays of disciplinary actions against medical professionals but never received serious attention in medical board reforms three years ago or in a Joint Legislative Audit and Review Commission study of the health boards in 1999.

The time-consuming procedure dictated by the Administrative Process Act most recently came to light last summer, when an investigation by the state medical board alleged that addictive pain medications prescribed by a Newport News internist were linked to eight deaths.

In case after case, Dr. James Howard Shegog allegedly lacked a basic understanding of a patient's condition or medication history. He also continued to prescribe narcotics to patients he allegedly knew to be addicted and against the advice of other caregivers, according to medical board records.

An August letter from the board of medicine notifying Shegog of its investigative findings cited his treatment of about 22 patients as "grossly careless, a danger to the health and welfare of your patients and harmful to the public."

But an assessment of the case, controlled by the board president, Dr. Thomas Leecost, a Richmond podiatrist, concluded that Shegog was not a substantial enough threat to warrant immediate suspension.

Leecost did not respond to questions about his role in the case or about the regulation.

Informal vs. formal hearings

The Administrative Process Act required that the case go to an informal fact-finding panel of board members. That panel's most serious possible action against a doctor is probation.

It's at that point that serious cases should be allowed to go to a formal hearing, Nebiker argues, stressing that he was not speaking specifically about the Shegog case. Formal hearings can result in the full range of sanctions, including revocation.

"This would be a significant way to protect patient safety and still preserve a doctor's rights to be heard," Nebiker said in comments backed by William Harp, executive director of the medical board.

Bypassing the informal hearing would allow the board of medicine to review the case and consider a full range of sanctions. At the same time, the physician would have time to develop and present a case in his or her defense, they said.

Shegog's informal hearing was set for September but was postponed at the request of his lawyers until December; by November a continuing examination of Shegog's practice had turned up four more cases of alleged patient mistreatment.

Shegog's informal hearing Dec. 8 before three board members lasted about seven hours. Among those in attendance were agents from the Drug Enforcement Administration and the U.S. attorney's office.

Representatives of those agencies declined to comment about their interest in the case.

Panel members either would not speak or did not return calls to a reporter, but medical-board records show the panel could not agree on any action except to send the case to a formal board hearing.

Shegog, meanwhile, continued to practice.

While the case against him went through months of notification requirements, delay and scheduling issues, Shegog's patients continued to suffer, according to investigative findings.

In November, a month before the informal hearing, a Newport News man who had been seeing Shegog since August died at his father's home of a drug overdose.

An investigation turned up allegations that Shegog had not properly assessed the patient and without justification quadrupled his intake of a powerful pain narcotic, Oxycontin.

The matter did not come to the medical board's attention until after the informal hearing. Last month, seven months after its initial set of allegations against Shegog, the medical board shifted gears.

In a March 16 letter from the medical board, Shegog learned that his license had been summarily suspended and that he would face a formal hearing in May. The formal hearing would consider the most recent death, the other eight deaths reviewed at the informal conference and the standard of care he provided to more than 30 patients.

The addition of a single death had dramatically changed the board's view of Shegog.

In August his care had been described in charging documents as grossly negligent and a danger to the public but not worthy of immediate suspension. Seven months later, in March, he had become a doctor whose "continued practice of medicine may be a substantial danger" and his license was summarily suspended without a hearing.

A person who answered the phone at Shegog's house yesterday referred all calls to the doctor's lawyers.

Shegog's lawyers have declined to discuss details of the case except to say that they will contest the charges in May.

Almost 5,000 informal hearings

Removing the informal hearing requirement could affect hundreds of cases a year. Since 1999, the boards within the Department of Health Professions have had almost 5,000 informal hearings.

For the same period, there have been 1,200 formal hearings. Most of those occurred after the informal conferences failed to resolve the case.

Nebiker acknowledged that the change would only be "a partial solution" to long-standing criticisms that the health boards take too long to resolve cases.

The legislature two years ago made it far easier to bring disciplinary charges against physicians, investigators' ranks have increased, and computerized access to pharmaceutical records are broadening.

But the lengthy proceedings in the Shegog case and others suggest that conclusions reached six years ago about sluggish investigations and disciplinary actions can still hold true today despite the changes.

A state investigation of the health boards concluded in 1999 that some doctors have practiced for years after complaints of major failings were reported.

Nebiker said that when legislative changes made it easier to discipline doctors two years ago, bypassing the informal hearing process never got serious consideration.

But investigators say, too, that physician discipline hinges on the will of the medical profession to police itself. Without that, legislative changes can carry little weight.

The building allegations against Shegog and the decision last month to suspend his license don't mention actions before the medical board almost nine years ago.

In September 1996, Shegog was the target of a medical board investigation that turned up allegations of drug-prescription abuses to 12 patients.

The allegations involved thousands of doses of narcotics that were "without accepted therapeutic purpose and contrary to sound medical judgment," according to the medical board. The allegations dated back to 1992.

The case was sent to an informal hearing on Jan. 24, 1997. A three-member panel of the medical board heard the case. It included then-chairman Anthony Moore of Richmond; Dr. Joseph Leming, who had served with Shegog on several committees; and Dr. James Allen, a neurologist from Newport News where Shegog also practiced.

The panel voted unanimously to dismiss all the allegations.

That same year, Shegog resumed seeing a patient whom a social worker had warned "has no ability to evaluate the origin of her pain and most often it is of a psychological nature."

She had been hospitalized repeatedly for drug problems and Shegog had told one hospital that "the patient should not be given any pain medication," according to medical board allegations issued against Shegog last August.

On Aug. 10, 2000, Shegog injected the patient with Stadol and phenegran and wrote her a prescription for Vicodin. Shegog's records, according to the medical board, showed no physical exam of the patient or treatment history since her previous visit in April 1999.

Two days after the injections, the woman died.

ACCORDING TO CODE

This one-sentence change to the state's Administrative Process Act in 1993 means that even in serious cases of alleged patient harm, disciplinary proceedings against a health practitioner can be delayed for months. When a health practitioner's conduct is not considered serious enough to warrant emergency suspension, the case must go to an informal hearing, which can not result in more serious punishment than probation. If stiffer sanctions are considered necessary, the informal conference must vote to send the case to a new, formal hearing.

Code of Virginia Section 2.2-4019.A. Agencies shall ascertain the fact basis for their decisions of cases through informal conference or consultation proceedings unless the named party and the agency consent to waive such a conference or proceeding to go directly to a formal hearing.

Disciplinary history

Key dates in the disciplinary history of Dr. James Howard Shegog:

* September 1996: Medical board alleges 12 cases of standard-of- care violations involving drug prescribing.

* January 1997: All allegations dismissed.

* August 2004: Medical board alleges that Shegog's care was involved in eight deaths and improper care of more than 20 patients; all allegations involved drug prescribing. Despite allegation of gross negligence, the case was scheduled for an informal conference, where the maximum disciplinary action is probation.

* December 2004: An informal conference committee fails to resolve the case, sending it to a then-unscheduled formal proceeding.

* March 2005: The board of medicine summarily suspends Shegog's license with no hearing citing his care as a danger to public safety and health. It simultaneously schedules a formal hearing for May on the previous allegations and a new allegation of a patient death in November 2004.

Source: Richmond Times - Dispatch

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