By DAMIEN FISHER, InDepthNH.org
Responding to a Boston Globe series highlighting the lack of transparency in the way the New Hampshire Board of Medicine handles complaints about doctors, New Hampshire Attorney General John Formella’s Office is backing new recommendations to open the process to the public.
In a report issued Friday, Formella’s office suggests making more information about doctors brought before the Board public, including data on lawsuits and Letters of Concern.
The Letters of Concern, or LOC, are currently confidential and sent by the Board to doctors expressing the need for some kind of corrective action. These LOCs are typically sent as a measure short of formal discipline.
“The fact that the BOM currently has available to it a formal mechanism to express ‘concern’ about an individual’s professional conduct in a nonpublic setting might be part of the reason that the BOM appears to act on complaints at such a low rate compared to its peers in other states,” the AG’s report states.
Last year, the Board received 147 complaints about doctors in New Hampshire, and yet took disciplinary action in just 17 instances. In 2021, the Board took action nine times after receiving more than 215 complaints, according to Formella’s report.
There is no data available on the number of LOCs the Board issued, as they are considered confidential.
The Globe’s Spotlight team last year reported on former Catholic Medical Center surgeon Dr. Yvon Baribeau, whom the newspaper characterized as having “one of the worst surgical malpractice records among all physicians in the United States.”
Baribeau was subject to numerous malpractice lawsuits, and had settled 21 of those cases. Of the settled lawsuits, 14 of them were brought by families of people who died after Baribeau operated. Baribeau’s record was never made public to patients and their families before he operated, according to the Globe.
“For its part, CMC explained in its response to the Globe’s inquiries that the number of complaints/lawsuits resulted from the fact that Dr. Baribeau-as a highly skilled cardio-thoracic surgeon-was often tasked with the most severe and difficult cases and that those cases are simply more likely to have negative outcomes (and hence, result in claims/complaints) even if the surgeon performs appropriately,” according to Formella’s report.
It also stated: “It is important to note, however, that 17 of the 21 settlements were settled after Dr. Baribeau had retired from the practice of medicine and no longer had an active license regulated by the BOM. The BOM does not, as a matter of course, investigate complaints received about medical professionals that no longer have an active license, both because there is no action the BOM can take against a non-license holder and because there is no meaningful public protection function to be served when the (former) licensee is already no longer practicing. Thus, the fact that 17 settlements were reached following Dr. Baribeau’s retirement is not something that the BOM would have been expected to review.”
The Globe’s reporting further states that New Hampshire has one of the least transparent medical boards in the country.
Formella’s office looked at close to 25 years of Board records and found much of the operation of the discipline record shrouded in secrecy. The Attorney General’s report is unable to state if Baribeau had even been the subject of any complaints that were not substantiated, or if he received any LOCs. The review could only report on public disciplinary findings, of which there are none concerning Baribeau.
“With regard to Dr. Baribeau, there was no public disciplinary action taken by the Board of Medicine during the period of his licensure,” the report states.
Formella’s suggestions include making LOCs public, as well as making available information about civil malpractice lawsuits brought against doctors.
“While this is already a public document within the court system, this enhances transparency by connecting relevant public documents to licensees and further sheds light on the BOMs activities,” the report states.
The Attorney General’s report also suggests adding the power for the Board to gain access to employment records and files as part of the investigatory process.
Laura Montenegro, director of communications and public relations at Catholic Medical Center, said the hospital is following all relevant laws when it comes to reporting issues with doctors and staff.
“CMC appreciates the review process of the New Hampshire Attorney General’s office, and we continue to follow reporting requirements,” Montenegro said.
The report absolves the Board of any failures to take appropriate action, though it suggests there should be an added level of oversight, at least temporarily.
“(T)his situation highlights the fact that there could be merit in having some interim backstop in the event that the BOM or another Board either was not following correct process or had insufficient resources to manage current investigations,” the report states.
