Criminal background checks provide patchwork protection against rogue doctors

About two-thirds of medical boards have the authority to investigate whether a physician has a criminal history, but rules vary by state.

By — Posted April 2, 2012

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Driving under the influence, tax evasion, fraud, battery and sexual assault.

These are some of the charges that have been revealed in criminal background checks of physicians by medical boards around the country. Often the doctors in question try to hide their criminal past, but that has become increasingly difficult.

During the last 15 years, concerns over public safety have led to many state medical boards being given authority to investigate as a condition of licensure whether doctors have a criminal history. But how that authority is used varies from state to state.

Physicians with criminal records may be denied a license, have restrictions placed on their practice or face no repercussions, depending on the will of the board in a particular state.

“Every situation is different and is addressed on an individual basis,” said Dan Wood, spokesman for the Medical Board of California.

Of the nation's 70 medical boards, 46 boards in 36 states can conduct a criminal background check as a condition of licensure. Of those, 40 boards in 31 states have access to the Federal Bureau of Investigation database, according to the Federation of State Medical Boards.

Twenty-seven states require fingerprinting, compared with seven states that required them in 2001. In 1998, the FSMB first recommended that boards conduct criminal checks on physicians seeking full or partial licensure, but not all states have followed suit.

Medical boards in 14 states lack the authority to conduct the searches on physicians. At least one of those states — Minnesota — is considering legislation to mandate such checks.

“Criminal background checks are a useful element in the checks and balances that are available to state medical boards to protect the public and promote quality health care,” said FSMB President Humayun Chaudhry, DO.

The Assn. of American Medical Colleges has recommended such checks for all medical school applicants since 2006.

Of the nation's 137 accredited allopathic medical schools, 102 had the checks run through the AAMC's American Medical College Application Service for students who will begin classes in fall 2012. About 20 medical schools conduct the checks on their own, said Kelly Begatto, AMCAS director.

Boards and medical schools began conducting background checks as the result of pressure from state legislatures, hospitals and the public to ensure that those entrusted with caring for patients are morally and mentally fit to practice medicine, Dr. Chaudhry said.

News reports of crimes by doctors and medical students served as further justification. One of the grimmest cases was that of serial killer and medical school graduate Michael Swango, who is serving three consecutive life sentences after pleading guilty to murder and fraud. Swango was able to practice medicine in South Dakota and New York despite a 1985 aggravated battery charge for poisoning co-workers in Illinois. He is thought to have fatally poisoned as many as 50 people in the 1980s and 1990s, the FBI said.

Another example is Robert Howard, a two-time Olympic athlete who was a medical student at the University of Arkansas for Medical Sciences in Little Rock. Howard was known to have a bad temper and had a first-degree assault charge on his record. He is believed to have murdered his wife, who was doing her neurosurgery residency at UAMS, before jumping to his death from a 10th-floor dormitory window in 2004.

In both cases, officials said knowing the men's previous criminal histories would have prevented them from being hired, or being admitted to medical school in Howard's case, according to news reports.

“Doctors are not immune to criminal behaviors, ranging from raping a patient to tax evasion,” said Sidney Wolfe, MD, director of consumer advocacy group Public Citizen's Health Research Group.

Medical board officials say they are not sure how many physicians have criminal histories.

“It is not infrequent,” said Mari Robinson, executive director of the Texas Medical Board. “We have 70,000-plus physicians in the state, so it's a low percentage, but it's not an insignificant number.”

In North Carolina, about one in five background checks turns up a criminal record on a physician, said Jean Fisher Brinkley, a spokeswoman for the state's medical board. In an evaluation of disciplinary actions against physicians by medical boards and federal agencies between 1990 and 1999, Public Citizen found 2,903 of 31,110 actions involved criminal convictions, according to a 2006 report.

Different rules in different states

California, North Carolina, Ohio and Texas are among 28 states that require physicians to submit fingerprints, which are processed through state and federal bureaus of investigation databases.

In most cases, background checks are done as part of the initial licensure process, but some boards do additional checks, Dr. Chaudhry said. For example, the State Medical Board of Ohio also requires background checks when a physician applies to restore a medical license that has lapsed for more than two years. The Texas Medical Board runs periodic checks comparing its licensee database against Texas Dept. of Public Safety crime records.

“Medical boards take into consideration the severity of the criminal conviction and the nature of the conviction,” Dr. Chaudhry said. “It takes many years to become a physician. Especially when you have a physician shortage, you don't want to dismiss a physician offhand. You want to investigate.”

In Ohio, the board examines the severity of the offense, the sentence, the time that has elapsed, what a physician has done to be rehabilitated and whether an individual was honest on his or her application to the board, said Joan K. Wehrle, the board's education and outreach program manager.

The Medical Board of California, which has required background searches since the early 1970s, evaluates all information about the licensee's criminal history and how it relates to the physician's qualifications, functions or duties, Wood said.

“The board reviews every conviction based not only on the conviction itself in relation to the statutes, but also on the underlying issues which led to the conviction,” he said. “The laws do not differentiate between a felony and a misdemeanor conviction.”

In North Carolina, most criminal records the board sees are the result of “youthful indiscretions” that were committed many years ago, said Joy Cooke, director of licensing with the North Carolina Medical Board. Examples of such charges include indecent exposure, shoplifting or assault and battery.

The Texas Medical Board's action depends on the case, including the type of crime committed, when it was committed and whether the physician was honest in his or her application. The crime is unlikely to affect a physician's license unless it is a felony, a crime of moral turpitude or a crime involving the practice of medicine, Robinson said.

Not every doctor tells all

Nationwide, physicians applying for a medical license and students applying to medical school are asked to disclose any criminal history before a background check is run. Whether the applicant is honest in the response can have a big impact on how the board or school responds.

“Failure to disclose a conviction is considered to be dishonest, and therefore an egregious breach of ethics and unprofessional conduct,” said Wood, of the California board. “It is really foolish in this day and age of computer communications to think they could actually conceal a criminal record.”

But the North Carolina board has found that many physicians don't disclose their criminal histories. Sometimes, there is a reasonable explanation. For example, a charge may be 30 years old and the physician may think it had been expunged years ago, Fisher Brinkley said.

The board is more lenient when it believes a physician wasn't intentionally being dishonest. It may issue a license with a private or public letter of concern, require the physician to do additional training or place limitations on his or her practice abilities. In the rare, more serious cases, the board will deny a medical license, she said.

In Texas, if the board believes an omission was unintentional, the board may allow the physician to withdraw the application and reapply, Robinson said.

But doing only an initial criminal background check isn't enough when physicians may practice 30 years or more, said Dr. Wolfe, of Public Citizen. Medical boards need to have other ways to learn of convictions against physicians licensed in their state.

Many states require licensed physicians to report within 30 days any charges against them while in practice. But those reports aren't always made in a timely manner, said Fisher Brinkley. As a result, the North Carolina board plans to contract with a private company that will routinely check for arrests among the state's physicians.

“The board has grown frustrated with the lack of disclosure,” Fisher Brinkley said. “It's another way that the board can make sure it is doing due diligence and it's not depending on the licensee to disclose that information.”

If a physician commits a crime in another state, many boards rely on the FSMB Physician Data Center and the National Practitioner Data Bank, which report actions taken against a physician by another state medical board or hospital.

The NPDB is supposed to include criminal convictions against health professionals, but many prosecutors don't know they are required to report those convictions, Wolfe said.

“There is serious underreporting,” he said.

California requires court clerks to notify the medical board within 48 hours of any convictions against physicians. Many states have similar requirements, but those rules aren't always followed, Dr. Chaudhry said. The FSMB and individual boards need to work with the criminal justice system to make sure they are informed when a physician is charged with a crime, he said.

“Unfortunately, the medical boards are not always consistently informed of criminal convictions in the courts,” he said.

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Investigating doctors' criminal histories

Forty-six medical boards in 36 states and Washington, D.C., have the authority to require physicians to submit to a criminal background search when they apply for a medical license. But states differ in how they conduct those checks and what records they access.

States that can access physicians' criminal background history as a condition of licensure:

Alabama, Arkansas, California, Colorado, Delaware, Washington, D.C., Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wisconsin, Wyoming

Boards with access to the National Crime Information Center (FBI Database):

Alabama, Arkansas, California, Colorado, Delaware, Washington, D.C., Florida, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Michigan, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington, Wyoming

Boards that require fingerprints:

Alabama, Arkansas, California, Delaware, Florida, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Michigan, Mississippi, Nebraska, Nevada, New Hampshire, New Mexico*, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Virginia**, Washington, Wyoming

*New Mexico Board of Medicine, but not the New Mexico Board of Osteopathic Medical Examiners

**Thumbprint only required

Source: “Authority to Run Criminal Background Checks: Board-by-Board Overview,” Federation of State Medical Boards, Feb. 24 (link)

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