Policies block out full picture

He told regulators he first met the patient on a Hawaii golf course.

Before long, Dr. Mark Fortune, who had offices in California and Hawaii, was issuing prescriptions to his new patient for powerful painkiller and anti-anxiety pills without examining him, according to California medical board records.

Over the next several years, Fortune approved prescriptions for nearly 4,000 of the controlled-substance tablets for the San Diego County resident, who had back problems.

Yet Fortune failed to record a treatment plan for the patient, fabricated his medical chart and prescribed high-dose opiates as a first treatment without establishing a justification, according to a 2011 document charging the physician with multiple counts of gross negligence. Fortune told investigators he examined the man only once, according to the records.

Regulators cited that case and five others, along with Fortune’s month-old conviction for being under the influence of a controlled substance, to justify immediately suspending his California license in May 2011.

Hawaii consumers were not afforded the same timely protections.

State regulators did not take action against Fortune’s Hawaii license until May 2014 — three years after he was forced to stop practicing in California. The Hawaii Medical Board revoked his license, citing his failure to disclose his California troubles.

Fortune, who agreed to surrender his California license in March 2012, did not respond to requests for comment. Authorities started investigating him after several California pharmacies complained that Fortune was issuing narcotic prescriptions for patients while living in Hawaii.

Protecting physicians

Besides the issue of timely action, the Fortune case illustrates a significant flaw in the state’s system of regulating physicians.

A lack of transparency afflicts much of the system, benefiting physicians’ interests over the public’s, even though the main purpose of the oversight is to protect the public, according to a six-month investigation by the Honolulu Star-Advertiser. The newspaper examined dozens of licensing and discipline cases since 2000 to assess the system.

When a Hawaii-licensed physician is sanctioned in another state, as in the Fortune case, Hawaii consumers basically are kept in the dark — unless the medical board eventually imposes reciprocal discipline. That often doesn’t happen for at least two years after the initial sanction is imposed.

In more consumer-friendly states, disciplinary actions from elsewhere are posted on the physician’s online licensing profile after those states become aware of the sanctions.

Hawaii’s physician profiles are missing other important information that is routinely made public in states with more comprehensive websites.

The Hawaii profiles don’t include a doctor’s malpractice payment history, hospital sanctions or criminal convictions. Background information on medical training is missing. The website typically doesn’t even provide something as basic as the physician’s business address.

In fact, the profiles are missing more than two-thirds of the nearly 20 information categories that the Federation of State Medical Boards recommended 15 years ago to its members to boost transparency. The national group made the suggestions to respond to growing consumer demand for more physician background information.

A decade and a half later, Hawaii still falls far short of the recommendations.

"It sounds like Hawaii’s medical board isn’t even in the 21st century," said Julianne Fellmeth, administrative director of the Center for Public Interest Law at the University of San Diego and a former enforcement monitor for the Medical Board of California.

Scrubbing the record

Officials with the Department of Commerce and Consumer Affairs, which regulates doctors and other licensed professionals, say information on DCCA’s website largely is dictated by Hawaii law, which is similar to many other jurisdictions.

The agency says it tries to strike a proper balance between consumers wanting information about the professionals they hire and license holders striving to protect their online reputations.

"People are very sensitive about their complaint history," said Jo Ann Uchida Takeuchi, the department’s deputy director.

The attempt to strike that proper balance has meant that DCCA removes sanction information from its website five years after the license holder complies with a discipline order, as if the sanction never happened.

By contrast, California keeps physician discipline information on its website permanently, providing an easy way for consumers to check backgrounds even years later. Some other states keep sanction details online for a decade or more.

Dr. Sidney Wolfe, senior adviser for the nonprofit Public Citizen’s health research group, said Hawaii’s policy of removing discipline information after five years shortchanges consumers, especially in cases involving serious sanctions.

"If a patient wants to look up a doctor and can’t get everything, that’s not a full picture," Wolfe told the Star-Advertiser.

Agency’s hands tied

The dearth of online information is magnified by the department’s clunky website, which relies on two 1980s-era databases to generate licensing and enforcement information. Consumers must go through multiple steps to navigate two different Web pages to check a physician’s background or complaint history.

More consumer-friendly states, such as North Carolina and Georgia, have all that information linked to a physician’s profile on a single site.

DCCA officials noted that a project to replace the licensing database is in the works and that the separate enforcement database eventually will be replaced as well, increasing the functionality of the website and moving toward more seamless physician profiles with information on one Web page.

But they could not say whether new information will be added to the profiles, given the uncertainty about what the eventual Web interface will look like or contain.

The Star-Advertiser examination also found that consumers are being shortchanged via several laws.

One prohibits Hawaii’s medical board and other licensing entities here from considering expunged convictions when deciding whether to grant licenses.

California, by contrast, is allowed to consider such convictions, as long as the underlying offense relates directly to the qualifications or duties of the occupation for which a license is sought.

The difference has resulted in Hawaii regulators approving a license for a physician assistant who had an expunged conviction for statutory rape and another whose conviction for planning a home invasion was expunged. California initially refused licenses to both men, citing the public’s interest. The physician assistant with the expunged statutory rape offense eventually obtained a conditional license — on his third try.

Nowhere in Hawaii’s public record can consumers learn about the expunged offenses. Hawaii law requires that information on license applications be kept confidential.

Power of the board

Hawaii law also sets the composition of the medical board, which makes licensing and discipline decisions for physicians, physician assistants, podiatrists and emergency medical technicians. Two of the 11 members must be public (nonphysicians), while the other nine must be physicians. That amounts to a public representation rate of 18 percent — a situation that some critics say results in overly favorable decisions for physicians.

Only nine other states have a lower proportion of public members on their medical boards, according to a Star-Advertiser analysis of federation data.

Fellmeth, the former enforcement monitor on the California board — nearly half of its members are public — called Hawaii’s public representation ridiculously low. "These people would be out-voted on all occasions," she said.

DCCA officials disputed the notion that the regulatory system elevates the interests of physicians over the public’s, saying Hawaii law does not allow that. They also disagreed with the contention that the physician-dominated medical board is too lenient on doctors, citing Hawaii’s 2009 ranking by Public Citizen as the 10th-best board nationally for disciplining physicians.

"That information alone refutes any claims that the board is too lenient or generous," Ahlani Quiogue, the medical board’s executive officer, said in written responses to Star-Advertiser questions.

The lack of transparency also manifests itself in the granting of physician licenses.

In some cases the board approves conditional credentials because the panel has concerns about the applicant’s past conduct. The concerns aren’t great enough to prompt a license denial, but they are serious enough that the board imposes conditions, such as substance abuse monitoring, on the doctor’s ability to practice.

Yet the public largely is kept in the dark about the underlying conduct that triggers the restrictions.

When the board grants a conditional license, the minutes of the meeting only reflect the laws the panel cites to justify the conditions.

In a 2014 case, for instance, the board approved a restricted license for a doctor who had a drug or alcohol problem, requiring him to be monitored for substance abuse by an independent organization, according to the minutes. The panel also banned the applicant from using alcohol or drugs (other than what was prescribed by his physician) during the monitoring period and required that the board be provided with regular reports on his compliance.

To support its actions, the board referred to laws dealing with drug addiction and professional misconduct, incompetence or gross negligence.

But the minutes are silent on what the physician actually did to warrant the conditions.

In another case from 2005, the board granted a surgeon a conditional license six months after another state revoked his credentials because of a substance abuse problem. Officials with other medical boards said getting a license so soon after losing one in another state is rare.

Yet the meeting minutes did not mention the revocation — the worst possible sanction the physician could get.

Protecting the public

In another reflection of the transparency problem, the board last year started providing less information to the public about its decisions denying licenses to physicians.

Up until 2014 the panel would sometimes list details about criminal convictions, disciplinary actions in other states or other factors to help explain denial decisions.

But it now only lists the statutes supporting the denials, not the underlying details, similar to what it does with conditional licenses.

There was no law change requiring DCCA to revise the way it reports its licensing decisions.

"Absolutely, the public needs to be concerned about this," Lisa McGiffert, director of a patient safety project with Consumers Union, said of the general lack of transparency.

DCCA officials said license applicants under Hawaii law are afforded significant privacy interests, making information related to their applications confidential.

Dr. Niraj Desai, a nephrologist and Hawaii Medical Board chairman, said the board is sometimes asked to consider Hawaii’s physician shortage or the importance of a particular specialty when making licensing decisions.

But Desai, who stressed that he was not speaking on behalf of the board, said he believes board members consider those factors secondary to their main job of protecting the public.

"I take that very seriously," he said.