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Last May, Dr. Richard Kaul went before the New Jersey Board of Medical Examiners to plead to keep his doctor’s license. Kaul had been convicted in England of negligent manslaughter after a dental patient died under anesthesia. His British license was revoked when he admitted that his “inattention” allowed the patient’s blood oxygen to drop low enough to cause brain hypoxia and, finally, cardiac arrest. But the New Jersey board allowed Kaul to keep his state license if he agreed to a six-month suspension. Kaul, of Convent Station, N.J., believed the decision was too strict, so he appealed. “If anything, the six-month period of active suspension was lenient,” the New Jersey Appellate Division ruled on Dec. 5. The discipline was especially lenient considering that Kaul had lied about the death on his applications to St. Clare’s Health System, where Kaul is on staff, and Hackensack University Medical Center, the court noted. The case, IMO Richard Kaul, M.D., while dramatic, nonetheless typifies the Board of Medical Examiners’ attitude toward doctors who harm their patients. The board rarely bans doctors from practicing, even when they kill people, a review of the board’s discipline records, dating back to 1972, shows. In fact, doctors who repeatedly commit malpractice or engage in behavior that could harm patients on multiple occasions are about twice as likely to be allowed to continue practicing than to be banned, the records show. The survey discovered 290 cases in which doctors are described as repeatedly committing malpractice. In only 90 of those cases — about one in three — were the doctors permanently prevented from continuing to practice. In all other cases they were fined, reprimanded or given temporary suspensions, but were allowed to continue working. The New Jersey Law Journal undertook the study to test a key argument in the debate over the medical malpractice insurance crisis: Whether the medical profession allows bad doctors to continue practicing after they commit malpractice, thus increasing malpractice insurance premiums. Doctors, who earlier this year nearly succeeded in convincing the state Legislature to cap damages for pain and suffering at $250,000, have contended that the malpractice insurance crisis is caused largely by frivolous suits and jackpot jury awards, not by bad doctors. The results do not prove specifically that doctors who repeatedly commit malpractice are the cause of multiplying suits and spiraling premiums. Rather, the review indicates that there is evidence to support a longstanding position of the plaintiffs’ bar that some bad doctors are allowed to continue practicing despite instances of malpractice. Whether repeat malpractice offenders are directly linked to spiraling premiums remains unknown because of confidential settlements and the historical refusal of insurance companies to provide breakdowns of payments they make. Overall, the survey found that since 1972, the New Jersey Board of Medical Examiners has disciplined 800 doctors for activity harmful to patients. About 32 percent of the 3,461 discipline reports issued by the board describe cases in which the board has found that a doctor has harmed a patient. The numbers are surprisingly low — only about 26 cases a year. By contrast, 1,650 to 2,000 medical malpractice suits are filed every year, according to the Administrative Office of the Courts. Settlements in such cases are often secret, but the federal National Practitioner Data Bank of Rockville, Md., tracks malpractice insurance payouts. In New Jersey, insurers made 940 malpractice payments in 2001, the most recent year for which figures are available, according to the data bank. Put simply, the disparity between 940 payments and 26 disciplinary actions means that only about 2.7 percent of malpractice payments result in doctors being disciplined. THE FAULT IS IN OUR COURTS So why is discipline so rare? According to the Medical Society of New Jersey — the lobbying group that represents doctors and pushed for caps on damages in malpractice cases — there is a flaw in the tort system that makes malpractice seem more common than it is. Juries are bad at deciding malpractice cases, the medical society argues, because once they see a patient’s injuries their hearts blind them to the medical facts, and they decide for the plaintiffs. This happens most often in cases involving difficult births, where even the slightest problem can leave a child brain-damaged — what the profession calls “bad baby” cases. “When a bad baby is brought into court, a jury will willingly overlook the merits of the case and find for the baby regardless,” says John Schaffer, a spokesman for the medical society. By statute, if an insurance company makes a malpractice payment, it is automatically referred to the Board of Medical Examiners, which then reviews the case to decide whether discipline is warranted. Once the board — a 21-member panel dominated by doctors — has heard the evidence, it frequently concludes that despite the jury verdict the doctor did not deviate from the appropriate standard of care. Hence, it is not the board but the court system that needs fixing, the medical society says. “The survey results are some of the best proof that the system is broken,” says Robert Conroy, a partner at Kern, Augustine, Conroy & Schoppmann in Bridgewater. Conroy is general counsel to the medical society and specializes in defending doctors before the Board of Medical Examiners. “[The courts] have poor selectivity, there’s an inability to discern true medical negligence from lawyers’ showmanship,” he says. “Here [on the board of medical examiners] you have a blue-ribbon jury. They reach the determination in an overwhelming number of those cases that there was no evidence of gross malpractice or repeated acts of malpractice.” Indeed, according to cases in which that “blue-ribbon” jury has found malpractice or harmful behavior, none of the following fact patterns guarantees a total ban on medical practice:

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