Legislative measure seeks medical-board transparency

When something terrible happens to a patient in a hospital or under a doctor's care, families often file complaints with state disciplinary boards.

Frequently, those who believe they have been wronged hear nothing for months or even years, only to finally be told that the official finding is "insufficient evidence" or "no cause for action."

Families are left wondering: How on earth did authorities reach this conclusion? Did they really investigate and search for the truth? Did the doctor or hospital lie or cover up?

Spurred by the experience of a Lake Forest Park family, lawmakers have proposed a bill that would give more rights to people who file complaints alleging medical mistakes. House Bill 1493 passed the House 68 to 29 earlier this month and is scheduled to be heard by a Senate committee Thursday.

Nearly 1,400 people filed complaints last year with the state's Medical Quality Assurance Commission, which disciplines doctors and physician assistants.

Among them were Yanling Yu and her husband, Rex Johnson, both scientific researchers, who filed complaints against a local hospital and a doctor after Yanling's father died in 2008. The couple told authorities that Xingxun Yu, 81, was given a drug in the hospital by a doctor who knew it could trigger an allergic reaction — but never warned him or his family of its risks.

Five months after filing their complaints, Johnson and Yu received official word that the state would take no action. Stunned, they called the medical board. They asked for reconsideration. They wrote the governor.

New to such a process, they were dogged but polite, thanking officials for their time and signing every letter "respectfully."

Disciplinary officials stuck to their first, terse statement: Neither the doctor nor the hospital had harmed the patient or violated professional standards. Each time the couple submitted what they believed was new evidence, the answer was the same — without explanation.

Like most medical boards, the state's Medical Quality Assurance Commission (MQAC) typically closes most without action, says its legal manager, Michael Farrell.

Last year, it investigated 950 complaints and took disciplinary action in 94 cases.

The law doesn't require MQAC to divulge evidence during investigations or to detail its reasoning, Farrell says, and mostly, it doesn't.

Such lack of transparency is common in most states and grates on families and patients who file complaints, said Lisa McGiffert, director of Consumers Union's Safe Patient Project, a national patient-safety effort.

"Many patients who file complaints end up getting frustrated because they feel like their report disappears into a bureaucratic black hole," she said. Washington's bill, which gives patients a "better opportunity to be heard," could become a national model, McGiffert said.

In early 2009, Yu and Johnson poured out their frustration to their local lawmaker, Sen. Maralyn Chase, then a state representative from Shoreline, who proposed legislation. "I did not think that they were being treated with respect or their concerns taken seriously," Chase says. "And furthermore, I thought they were being stonewalled."

Lengthy file

Officials in the state's Department of Health, which oversees the boards that discipline health professionals and medical facilities, say this case — which has generated a 619-page file — has been investigated up one side and down the other.

Different members of the Medical Quality Assurance Commission and, at one point, an outside consultant carefully reviewed the case, Farrell said.

The 21-member commission, with a majority of physicians, is charged with protecting the public, Farrell said. "Just because a doctor made a mistake doesn't mean that the commission will take disciplinary action," because it may find it's unlikely to happen again.

As requested by Rep. Eileen Cody, the commission summarized its findings in Yu and Johnson's complaint in an e-mail late last year.

• The drug given to Xingxun Yu was the only choice.

• Providers didn't warn the family because it isn't practical to seek "detailed consent" for every drug.

• Yu was never really allergic to the drug, anyway.

• A Medicare citation against the hospital for violating informed-consent regulations didn't equal "malpractice" or "unprofessional conduct."

Cody forwarded the e-mail to Yu and Johnson.

It had been more than 2 ½ years since Xingxun Yu's death. Again and again, his family had sought answers from officials, attempted to acquire state files, and hired a lawyer to fight redactions. The e-mail was their first glimpse into the commission's reasoning.

And they disputed every point.

Respect for citizens

Chase, the lawmaker who first proposed legislation after hearing Yu and Johnson's story in early 2009, says her involvement wasn't about the merits of their case but about respect for citizens.

Though her father's lungs were irreversibly damaged, Yu told Chase, he was animated the day he entered the hospital to be weaned from a portable air machine. His red wrist band warned of a sulfa drug allergy. His daughter, who stayed with him there, was never told the drug he received four times was a sulfa drug, or warned of its other risks.

When the elderly man's blood pressure dropped precipitously, hospital staff initiated rescue attempts, but they proved too much for his kidneys, heart and lungs. Taken home by his family, he died days later.

In documents, the couple saw that the hospital pharmacy had warned the doctor about a possible drug reaction. Later, in a Medicare investigation, the doctor confirmed he hadn't told the family about the drug's risks.

Yu and Johnson also told Chase about their "humiliating" meeting with the staff of the Medical Quality Assurance Commission. "We were treated as loony tunes, that we were the ones who committed some unprofessional conduct," Yu recalled.

Later, commission officials met with Chase, portraying the couple as "overwrought with grief and not entirely balanced," Chase said.

"I was so astounded," she said. "They are very thoughtful, extremely intelligent people ... . Under no circumstances did I think they were irrational with this issue."

But the two had been disrespected, Chase said.

"If I were walking in their shoes, I would be outraged," Chase said.

Prompt response

The proposed law would require a health profession's disciplinary board to promptly respond to complainants' queries about the status of an investigation, provide copies of files on request once a case is closed and, when deciding whether to reconsider its original finding because of new evidence, provide an explanation of its reasoning.

For the first time, families would be given the right to tell board members how they've been affected — in writing or in person and before a case is closed — and recommend sanctions.

Kristi Weeks, director of legal services for the Health Department, says boards already do most of what the bill requires.

People may not get their desired result, "but that doesn't mean we haven't gone through a thorough, fair and transparent process."

Under the proposed law, boards still wouldn't have to divulge information or files while an investigation is under way, and there is still no appeal for complainants.

The bill's prime sponsor, Rep. Jamie Pedersen, says the measure is a good first step toward a "bill of rights" for patients and families.

In September, Yu and Johnson filed a civil lawsuit against the doctor.

Efforts to reach him for comment were unsuccessful.

Yu says she and her husband are nobodies, just "Joe Blow." But they're also bulldogs, she said, and will hang on until the end.

"It is not just our rights, it's all patients' rights," she says. "We are doing this for everyone's rights."

Carol M. Ostrom: 206-464-2249