Nick Perencevich is a semi-retired surgeon from Concord who served in various capacities for 17 years with the NH Board of Medicine, ending in 2019.

Under the radar, House Bill 322 was recently signed by Gov. Sununu. Its purpose is “relative to establishing a committee to study the New Hampshire Board of Medicine and making an appropriation to the Department of Health and Human Services.” The stimulus for the study came from information to the legislature in regard to the Boston Globe’s Sept. 2022 Spotlight investigation involving Catholic Medical Center (CMC), a surgeon there with multiple complaints and no New Hampshire discipline, and also about many concerns about the board’s functioning in the last several years.

I feel that physicians, physician assistants, malpractice attorneys, patients and the public as a whole need to be informed about the issues that hopefully will be addressed by this new study committee.

First, some history. The legislature created the NH Board of Medicine in 1897. It’s mission then and now is to protect the public. This is done by carefully certifying credentials, requiring maintaining of skills once a license is granted, and responding to complaints, claims and lawsuits. After the U.S. Supreme Court’s 1889 Dent vs. West Virginia decision that states had the right to protect its citizen’s public health, most states, including NH, created boards of medicine.

It was a time of integrating facts and science into medicine spearheaded by the then-new Johns Hopkins medical model. For the last 126 years the NH Board has always had physicians and public members (and physician assistants in 1975) be the investigators and deciders on who gets and keeps a license. In the 1980s, the NH board created the Medical Review Subcommittee (MRSC) to investigate all of the complaints, claims and lawsuits. This was in response to a large increase in suits and claims in NH and the country. There was also a large influx of physicians into NH and population growth.

The MRSC had 11 physicians of different specialty types and public members to review the most common complaint issues. Also in the 80’s the attorney general’s prosecuting office (APU) began working with the decision-making board and the investigating board, the MRSC, to deal with the large workload. In 1999 a physician investigator position was created to make sure a physician was reviewing all incoming issues in a timely way. Total yearly travel expenses for the volunteer MRSC members and for the physician investigator were about $55K/year, a small amount considering that the state takes in $1.6M/year in board of medicine licensing fees. The administrative staff was also increased and this system worked well for 40 years. Until 2015.

In 2015 the Board of Medicine, which was always under the Department of Health and Human Services was moved to the new Office of Professional Licensing and Certification (OPLC). The medical board immediately lost its executive director and several staff members. The OPLC’s mission was to bring all the boards under one roof and to contain costs. The volume of complaints, claims and suits did not diminish. Indeed from 2015 to 2019 cases needing investigation rose to an all-time high of 490/year while 800 more physicians were licensed. All this while the usual five member staff of the MRSC was downsized to two.

With COVID, the monthly face-to-face meetings of the MRSC were curtailed and a huge backlog of cases to be reviewed ensued. Virtual meetings needing state approval eventually happened, but couldn’t catch up. Last summer the legislature and the governor eliminated the MRSC and physician investigator positions and removed the APU from the still in place decision-making board and the now-defunct MRSC. Legal assistance is now coming from state attorneys employed by the OPLC and not the attorney general’s office.

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Also in the last two legislative cycles, there has been pressure from some lawmakers and the governor to drastically reduce the number of licensing boards in the OPLC. Libertarian goals always list eliminating all licensing boards as a mission. However, eliminating the board of medicine has never been suggested and thankfully Gov.Sununu signed HB 322.

As stated above, for 126 years it has been physicians, physician assistants, and public members who have been the investigators and deciders on the board. It’s called peer review. Peer review is a cherished cornerstone in ensuring quality medical care and public protection. For example, for 24 years Concord Hospital’s surgical department has had a weekly peer review meeting looking at all their deaths and complications. By physicians policing themselves, patient care is improved. It is not clear since last summer to what degree peer review is happening within the board of medicine at this time. Hopefully, the HB 322 study committee will address this issue.

My fear is that this bill passed not because of all the issues I’ve raised above, but mostly because of the bad look the state got from the Boston Globe article about the alleged “bad” surgeon at CMC escaping discipline. That surgeon had 21 malpractice claims settled according to the Globe. The key word to remember in my explanation below is settlements. Almost all boards get their information to investigate from three sources: direct complaint forms filled out by patients, family or anyone else; claims filed to a malpractice company certified in NH which by law has to notify the board; and lastly a lawsuit filed in a local district court, with that court also by law needing to notify the board.

If a hospital or physician settles a claim outside of the malpractice insurer they use, then the board does not get notice. That’s what happened at CMC. The legislative investigation, which rapidly happened after the Globe Spotlight article, confirmed the inability of the board to gather settlement data. There is no reporting to the board mechanism, other than asking the licensee to report him or herself in their biannual renewal. Somehow finding a way for the legislature to force reporting settlements to the board, other than the licensee reporting themselves, might be the answer in the future.

So why is this important to physicians and physician assistants? I would hope if you have issues requiring board review and action that you will demand peer review to happen. Having your license reviewed only by an attorney working for the state is in my mind wrong. There has to be peer-physician input.

So why is it important to malpractice attorneys? Your job is to defend your client. If your client is a physician you are a defense attorney. If your client is a patient you are a plaintiff’s attorney. In either case, having a volunteer (travel expenses only) NH physician peer expert review your case is more likely to get to the truth. In a board of medicine hearing, where a license is at stake, that peer review NH physician is the expert for the board. In a trial, the experts on both sides are often highly paid out-of-state physicians, commonly known as hired guns.

Board hearings are about finding the truth and the safety of a physician having a license. Malpractice trials are about money. A suit usually goes to trial sometimes years after the board of medicine does its review and decision-making, at least when the board was timely with its investigation and decision-making up through 2019. The board’s job is to find the truth quickly with a thorough investigation and protect the public from a bad doctor. The public is best served when good peer review happens quickly and a bad doctor is stopped from creating more harm before the trial happens.

So why is this important as a patient or the public as a whole? The public and especially patients need to know they have a trusted resource, funded with their state dollars and physician renewal fees, to work with them in their best interest when they feel their medical care has caused harm. We’ve had a system based on peer review that met the demands of population growth and a changing malpractice climate since 1897, and especially since the 1980s when the MRSC was created and the physician investigator.

My hope is that when the HB 322 study committee is formed under the direction of Speaker of the House Sherman Packard, they take all the above background and history into consideration. Until recently the functioning of the board of medicine has been an open and clear process trusted by all. It needs to stay that way!