2002
Commentary
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Commentary
The Time Is
Now To Reform The Medical Practice Board
- January 2002
Medical Secrecy and Medical Mistakes:
What We Can Do To Strengthen Regulation Of Our Doctors
- February 2002
Majority Rule in Vermont’s
Elections - February 2002
A Call for Meaningful
Campaign Finance Reform - February 2002
Vermont Wins With New Medical Board Law:
Legislature Strengthens Regulation Of Our Doctors
- June 2002
Opinion Editorial:
January 2002
The Time Is Now To Reform The Medical Practice Board
By Secretary of State Deb Markowitz
Stephen Kiernan's recent series of articles on medical secrecy and the
regulation of Vermont's doctors were both thoughtful and provocative. It raised
many of the pertinent issues we face. We are lucky here in Vermont to be served
by a highly professional and talented medical community. However, while the vast
majority of our physicians are competent and dedicated, Vermonters have a right
to be certain that doctors who violate professional standards - doctors who may
endanger the health and well being of those entrusted to their care – are not
permitted to practice.
The Free Press series rightly questioned whether the system we have in place
today is giving Vermonters the protection they should expect. The Medical
Practice Board is made up of dedicated and caring members and staff.
Nevertheless, there are legal and structural reforms that should increase public
protection and help restore public confidence in the oversight of our doctors.
Here are some of the things I believe we
should do.
Increase Oversight: Since 1990 the Medical Practice Board has been the
only regulated profession to be freestanding and independent. (40 professions
are currently under the review of the Secretary of State’s office, while the
Supreme Court oversees lawyers, and the Department of Education oversees
teachers.) Over the years the independent status of the Board has remained very
controversial. This independent status has been reviewed regularly by the
legislature. Three years ago we experimented with giving our office some limited
oversight over the Medical Board, but this, too, proved to be ineffective,
inefficient and costly. The independence of the Medical Practice Board will be
reviewed again this year. The current law is scheduled to expire at the end of
the year.
Treating the medical profession differently than every other professional
group in Vermont serves no clear public purpose. On the other hand, bringing the
Medical Practice Board back under the umbrella of the Office of the Secretary of
State should help restore public confidence in the board. It would certainly
increase Board accountability. I am confident that this would better protect the
health and welfare of the people of Vermont.
Increase Access to Information: A regular complaint about the Medical
Practice Board is that their process is cloaked in secrecy. In fact, state law
treats complaints against physicians as confidential. In the cases that are
dismissed, or resolved in a settlement between the Board and a doctor, the
complaint and investigation materials remain sealed from public view. The
Medical Board limits public information to what it includes in its stipulations.
These are generally quite brief or give no information to let the public know
the nature of the underlying misconduct.
So here is the problem. Since 1997 only 10 medical practice complaints - out
of about 500 - went to a full public hearing, where the evidence and charges are
open to all. This means that only a tiny fraction of the cases that go before
the board are open to any public scrutiny. This policy should be changed. Even
though most complaints are determined not to rise to the level of unprofessional
conduct, the fact that there has been a complaint is important consumer
information. Vermont law should allow consumers to know how many complaints have
been made against a particular doctor to help us make informed decisions about
our medical care.
Establish A Better Standard For Unprofessional Conduct: Vermont law
provides a number of reasons for disciplining a doctor. Despite these standards,
during the past five years only five doctors have had their licenses revoked. In
fact, we know of no case where a license was revoked for professional
incompetence alone. The five cases where licenses were revoked involved criminal
acts, drug and alcohol addiction or inappropriate sexual conduct. This is
because the present standard for finding unprofessional conduct is "gross or
repeated failure to uphold the standard of care." This is a standard that the
Vermont Supreme Court has defined as the failure to exercise even the slightest
degree of care and an indifference to the duty owed the patient. The problem is
that even the most dangerous physician may care about his or her patient.
This year the legislature will have before it an important alternative. It is
a change that would allow action to be taken against a physician for failure to
use and exercise the reasonable degree of care, skill and proficiency which is
commonly exercised by any ordinary skillful, careful and prudent professional
engaged in similar practice, under the same or similar conditions. This change
would empower our licensing boards to better protect the public from incompetent
practitioners and to address a problem physician earlier in his or her career.
Improve Our Decisionmaking. The health and welfare of the public would be
better served if cases concerning a physician's competence were heard by a
law-trained judge. It is not enough for these cases to be reviewed only by other
doctors. (The Medical Practice Board has 14 members. Only three are "public"
members.) While the Board is highly committed - and prosecutorial decisions are
made by the Attorney General's office - the degree of empathy that exists among
members of the medical profession can result in leniency when it comes to the
discipline imposed. The Medical Board should continue to investigate and
prosecute, with the Attorney General, cases they deem to be meritorious, but the
final decision about whether there has been unprofessional conduct
- and the nature of the discipline - should be made by a law-trained
professional. This is the system we have adopted in Vermont for every profession
recognized since 1997. It is a system which has worked well to protect the
public.
So it is no accident that the questions highlighted in the recent Free Press
series have come up now. This is the year that the legislature will tackle the
future framework of the Medical Practice Board. Here at the Secretary of State's
office we are ready to work with whatever solution they sort out. I am hopeful
that we will have a constructive conversation about the issues, and that the
public interest of all Vermonters will be served by that dialog.
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Opinion Editorial:
February 2002
Medical Secrecy and Medical Mistakes
What We Can Do To Strengthen Regulation Of Our Doctors
By Deborah Markowitz, Secretary of State
We are lucky here in Vermont to be served by a highly professional and
talented medical community. However, while the vast majority of our physicians
are competent and dedicated, Vermonters have a right to be certain that doctors
who violate professional standards - doctors who may endanger the health and
well being of those entrusted to their care - are not permitted to practice.
This is the year the legislature must decide how Vermont will oversee the
regulation of our doctors. The current law is scheduled to expire at the end of
the year.
The Medical Practice Board is made up of committed and caring members and
staff. Nevertheless, there are legal and structural reforms that should increase
public protection and help restore public confidence in the oversight of our
doctors.
Increase Oversight: Since 1990 the Medical Practice Board has been the
only regulated profession to be freestanding and independent. Today the board
remains semi-independent with my office having some limited
oversight, which has proved to be ineffective, inefficient and costly.
There are 40 professions currently under the review of the Secretary of State’s
office, while the Supreme Court oversees lawyers, and the Department of
Education oversees teachers. Treating the medical profession differently than
every other professional group in Vermont serves no clear public purpose. On the
other hand, bringing the Medical Practice Board fully back under the Office of
the Secretary of State or to another state agency such as the Health Department,
should help restore public confidence in the board and increase Board
accountability.
Increase Access to Information: A regular complaint about the Medical
Practice Board is that their process is cloaked in secrecy. Indeed, state law
strictly limits the public information available on the professional complaint
history of the doctors who treat us. Even though most complaints are determined
not to rise to the level of unprofessional conduct, the fact that there has been
a complaint is important consumer information. Most other states make this
information public. This year there is a proposed bill, H.227, which would
provide to the public profiles on Vermont physicians’ medical malpractice
history and professional discipline. This legislation is a good start.
Establish A Better Standard for Unprofessional Conduct: Vermont law
provides a number of reasons for disciplining a doctor. Despite these standards,
during the past five years only five doctors have had their licenses revoked.
This is because the present standard for finding unprofessional conduct for
skill in treatment of the patient is "gross or repeated failure to uphold the
standard of care." The Vermont Supreme Court defines this as the failure to
exercise even the slightest degree of care and an indifference to the duty owed
the patient. The problem is that even the most dangerous physician may care
about his or her patient.
This year the legislature will have before it an important alternative. It is
a change that would allow action to be taken against a physician for failure to
use the care that is commonly exercised by an ordinary professional engaged in
similar practice, under similar conditions. This change would empower our
licensing boards to better protect the public from incompetent practitioners and
to address a problem physician earlier in his or her career.
Improve Our Decisionmaking: Right now, decisions about a doctor’s
competency are primarily made by other doctors. (The Medical Practice Board has
14 members. Only three are "public" members.) While the Board is highly
committed - and prosecutorial decisions are made by the Attorney General’s
office - the degree of empathy that exists among members of a profession can
result in leniency when it comes to the discipline imposed. While it makes sense
for the Medical Board to continue to investigate and prosecute, with the
Attorney General, cases they deem to be meritorious, the final decision about
whether there has been unprofessional conduct - and the nature of the discipline
- should be made by a law-trained judge. This would better protect the health
and welfare of the public. This is a system we have adopted in Vermont for every
profession recognized since 1997. It is a system that has worked well to protect
the public.
These important issues will be before the legislature this year. I am
confident that whatever solution they sort out will help restore public
confidence in our regulatory system. I am hopeful that we will have a
constructive conversation about the issues, and that the public interest of all
Vermonters will be served by that dialog.
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Opinion Editorial:
February 2002
Majority Rule
in Vermont’s Elections
By Deborah Markowitz, Secretary of State
Ask any fourth grader and you will quickly learn that democracy means
majority rule. In fact, most grown ups are surprised to find out that many of
our officials – from President to Secretary of State -- are elected with the
support of less that 50% of those who voted.
We expect that a person wins elective office when more than half of the
voters share his or her values or goals. In fact, in the current "plurality"
system whomever gets the most votes wins --
even if a majority of the voters consider that candidate to be unacceptable.
The fact that we use plurality voting – rather than majority rule comes as a
surprise because it is counter-intuitive.
In Minnesota we saw Jesse "the body" Ventura elected Governor of Minnesota
with just 37% of the vote. President Bill Clinton won his first election for
president with only 43% of the vote. Whether Ventura or Clinton was actually the
preferred choice of a majority of voters is something our current voting system
can’t determine. Indeed, many believe that Clinton won his first term in office
precisely because Reform Party candidate, Ross Perot, split the conservative
vote.
Our current "plurality" system also poses an unnecessary dilemma for many
voters where there are more than two parties in the running. By voting for a
favorite candidate a voter might end up actually helping to elect the candidate
they like the least. This conundrum keeps some voters home. It especially
effects our youngest citizens, who are most likely to vote for a third party
candidate.
With just over one in four young people (18 to 24 years old) choosing to
vote, and only 64% of Vermont’s adults voting in our presidential election it is
important for us to take a hard look at whether it is time to try something new.
This year the legislature will be considering two bills, S94 and H175, both
of which propose to change our voting system to ensure majority rule.
Republican, Democrat, Progressive and Independent legislators have joined
together to offer legislation that would permit our statewide and federal
elections to be run using the "instant runoff" method.
S94 and H175 would permit voters to not only pick a first choice in any
election, but they would also be given the option of indicating who their second
or third choice pick would be in case no candidate wins over 50% of the vote. In
the event that there is no majority winner, and runoff count can be conducted.
This will not require a costly new election. Rather, the law will permit the
runoff count to eliminate the lowest vote-getters and then count the voters top
preferences to find the candidate who has received the majority of votes. Voters
whose top candidate was eliminated will have their next choice count.
In Vermont, more than other states, there is another reason we should
consider adopting majority rule. According to our constitution, if no candidate
for Governor, Lieutenant Governor or Treasurer receives over 50% of the vote,
the legislature elects this position. You might be surprised to know that in 35
percent of all election years in Vermont, one or more federal or statewide races
had a result with no majority. And in some cases, when an election went to the
legislature, the legislature actually picked the person who did not receive the
most votes! Changing our system to majority rule would have the added advantage
of keeping our elections in the hands of the voters.
It is clear that we must take steps to strengthen our democracy. While we are
proud in Vermont of our high voter turnout, our turnout is still far below the
norm of other democracies around the world. We can do many things to make it
easier to vote, but what will really make the difference is to give people
reasons to vote – majority rule will get us there.
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Opinion Editorial:
February 2002
A Call for Meaningful Campaign Finance Reform
By Deborah Markowitz, Secretary of State
Remember our last election in Vermont?
Like most elections before it, candidates knocked on doors, handed out
literature outside of grocery stores and marched in parades. Vermont's
political candidates also raised money - lots and lots of it - so that in the
weeks leading up to the election they could run the political advertisements
that are essential if a candidate wants to be elected.
Much of the money raised in the last
election came from small donors - mostly within Vermont. But a lot of the money
that fueled the campaign engine in the year 2000 came from out of state. Many
campaigns received large contributions from the national and state political
parties - over a million dollars in the governor's race alone. Because of this
we don't really know where a lot of the money came from to support those and
other Vermont campaigns.
Given all of these facts, it seems
ironic that the 2000 elections were also the first time our candidates were
governed by a new Vermont campaign finance law. When it was passed, our law was
widely recognized as the most comprehensive and aggressive campaign finance law
in the nation. Vermont's law strictly limited candidate spending, contributions
and out of state money.
Our campaign finance law was adopted, at
least in part, to challenge rulings by the United States Supreme Court. Perhaps
then it is not surprising that - prior to the 2000 elections - the Federal
courts struck down many of the law's provisions as unconstitutional. This ruling
created loopholes, gaps which permitted unprecedented candidate and interest
group spending in the 2000 elections. We are now waiting for final court action.
But we may have to wait awhile. It is our hope that the Supreme Court will use
the Vermont case to take a fresh look at their earlier approach to campaign
finance laws, so it could be several years before we know what shape Vermont's
Campaign finance law will take.
However, we do not have to wait until
the courts make a final decision to reduce the influence of big money in
politics. We can even the playing field in Vermont's campaigns right now, in
part because the earlier court decision provided us with a road map. The court
said that - as long as we set a reasonable limit - it was constitutionally
permissible to limit the amount of money political parties can provide to a
candidate.
I urge the legislature to close the
political party loophole this year. That would prevent political parties from
pouring unlimited money into Vermont campaigns. In fact - since all other
contributions in statewide races are limited to $400 - if the party loophole was
closed there would be no opportunity for the influence of really big money on
politics in Vermont. This would even the playing field dramatically. With
political party contributions capped at a reasonable amount, all candidates can
play by the same rules and all have equal opportunity to fundraise to support
their races.
As Secretary of State I have been
concerned with finding ways to address public cynicism about government and
those who govern. One way to do this is to reduce the influence of money in the
political process. Because of this belief I have worked hard to successfully
implement Vermont's campaign finance law, even as it changed in the middle of a
campaign year. I have also suggested to the legislature ways in which we could
improve and strengthen the law so that it can accomplish its goals as we wait
for the US Supreme Court to take final action. Of all of those suggestions,
closing the political party loophole will do the most for bringing real campaign
finance reform to Vermont - and now. Not later.
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Opinion Editorial: June 2002
Vermont Wins With New Medical Board Law
Legislature Strengthens Regulation Of Our Doctors
By Deborah Markowitz, Secretary of State
This week the legislature enacted a sweeping reform of how
Vermont regulates its medical profession, marking the end of over a decade of
uncertainty and public mistrust of the independent board that oversees our
doctors. The new law will put in place legal and structural changes that should
increase public protection and help restore public confidence in the way Vermont
oversees its doctors. The new law accomplishes four important goals:
- Greater Oversight:
Since 1990 the Medical Practice Board has been the only regulated profession
to be freestanding and independent. Today the board remains semi-independent
with my office having some limited oversight, which has proved to be
ineffective, inefficient and costly. Under the newly passed legislation the
Vermont Department of Health will directly manager the Medical Board. This
is a great place for the Board as the Health Department is charged with
overseeing public health and in this capacity already regulates Vermont’s
Hospitals. Real oversight of the Medical Board by the Health Department
should increase Board accountability and help restore public confidence in
the board
Greater Access to Information:
A regular complaint about the Medical Practice Board is that their process
is cloaked in secrecy. Indeed, state law and Board policy has strictly
limited the public information available on the professional complaint
history of the doctors who treat us. The newly passed legislation requires
the medical board to provide to the public profiles on Vermont physicians
which will include information about their medical malpractice history and
professional discipline.
Better Standard for Finding Unprofessional Conduct:
The new law broadens the standard for finding unprofessional conduct for
skill in treatment of the patient. Currently the law permits discipline when
there is a failure to exercise even the slightest degree of care and an
indifference to the duty owed the patient. Under the new law the board will
be able to take action when a doctor has failed to practice competently by
performing unsafe or unacceptable patient care or by not following the
essential standards of acceptable and prevailing medical practice. This new
standard for discipline will go far to empower our licensing boards to
better protect the public from incompetent practitioners and to address a
problem physician earlier in his or her career.
Increase Public Representation On The Board:
Right now, decisions about a doctor’s competency are primarily made by other
doctors. While the Board is highly committed - and prosecutorial decisions
are made by the Attorney General’s office - the degree of empathy that
exists among members of a profession can result in leniency when it comes to
the discipline imposed. The newly enacted legislation doubles the public
membership on the Medical Board .
This significant reform of Vermont’s Medical Practice
Board will have a lasting impact on the health and safety of Vermonters. While
my office and the administration can count this new law as an important
accomplishment of this session, much of the credit for this remarkable
achievement has to go to the House Government Operations Committee. Under the
steady leadership of Cola Hudson, this committee spent countless hours listening
to testimony, reviewing documents, considering alternative language and working
out important compromises. Their hard work will benefit all Vermonters for years
to come.
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