Bradley laws add scrutiny; some fear little will change
By CRIS BARRISH
The News Journal
July 5, 2010
With near-lightning speed for Delaware's often-ponderous government, the colossal breakdown in the oversight of pediatrician Earl B. Bradley, who allegedly molested dozens of patients, has led to sweeping changes in laws that govern how doctors are monitored, investigated and disciplined.
Lawmakers, politicians and child advocates said the changes have been long in coming and should help identify aberrant doctors and protect boys and girl from abuse.
"The Bradley bills give us new tools to more effectively investigate doctors accused of wrongdoing,'' said James L. Collins, director of the state Division of Professional Regulation, which oversees the renamed Board of Medical Licensure and Discipline, formerly the Board of Medical Practice.
Lawmakers acted on recommendations in two state reports triggered by News Journal reports detailing the failures to stop Bradley.
Some, however, don't think the reforms go far enough.
While they acknowledged that more doctors and medical professionals might be persuaded by the prospect of a hefty fine and other discipline to report a colleague, they said the culture of secrecy and protection among doctors must change. The silence and inaction of doctors who were told of Bradley's suspicious behavior allowed him to allegedly abuse children over a 10-year period despite five separate investigations since he came to Delaware in 1994.
"The legislation mostly revolves around creating a better system for complaints and beefing up the laws that people are going to have to follow about making a report" to the medical board, said Karen Derasmo, executive director of Prevent Child Abuse Delaware. "Initially, everybody is going to be on hyper-alert but there's always going to be that good-old-boy system, and that's really unfortunate."
New powers for regulators and stricter rules for doctors were among dozens of new provisions in nine bills that passed unanimously and were signed by Gov. Jack Markell last week. Among the changes:
•Physicians seeking to get or renew a license must disclose all previous investigations into their behavior -- not just those resulting in punishment.
•All hearings of the medical board on alleged misconduct will be held in public. Accused doctors won't have a right to know who made the complaint.
•A chaperone must be present when a child under 15 is at least partially disrobed for an exam of private areas.
•The maximum fine has increased to $10,000 for a first offense by medical and law-enforcement officers who violate a law requiring them to report suspected misconduct.
•The medical board has the power to suspend or revoke a doctor's license for failing to report suspected misconduct.
The question remains, however, as to whether stiffer requirements and penalties can affect the culture among physicians. Will tougher fines for failure to report doctors make a difference when the law has never been enforced, for instance?
State Rep. Helene Keeley, a sponsor of several Bradley-influenced bills, said the outrage over failures by the medical community and law enforcement helped her and fellow legislators make reforms they've been seeking for years.
Keeley wants even more oversight, however, such as requiring doctors to undergo drug testing. She also agrees that doctors must change their attitude toward reporting suspected misconduct by their medical brethren. One Milford pediatrician, Dr. Lowell Scott, told police in 2005 that he referred to Bradley as a "pedophile." Scott, who now says the remark was taken out of context, never reported Bradley.
"We give such high regard to these individuals but at the same time they have a responsibility as citizens of this state," Keeley said. "But without a doubt there's a philosophy out there that you have to take care of your own. And I don't think society as a whole thinks that is OK anymore."
Collins agreed there's been "a reluctance" by doctors to report colleagues, but said new provisions protect the identity of the doctor making the complaint. "We need to create an environment where concerns can be addressed," Collins said, "without having a chilling effect on the professional making the report."
Years of allegations
Bradley was arrested Dec. 16 and charged first with raping one girl; days later, he was charged with several more rapes. At the time, police said they had been investigating him for about a year, but gave no indication that multiple allegations had been made years earlier.
But early in January, after obtaining search warrant documents over a judge's objection, The News Journal reported what police, prosecutors, doctors and hospital administrators had not revealed:
•Bradley was investigated in 2005 by Milford police for excessive kissing and improper touching, and one mother complained of a 1999 molestation.
•Beebe Medical Center, where Bradley worked or had privileges since 1994, knew of the Milford case.
•Fellow doctors had concerns about how he performed genital and vaginal exams.
•His sister tried to warn the Medical Society of Delaware in late 2004 about complaints of improper touching by Bradley and his deteriorating behavior, only to be told by the trade association's president that it was a "family matter."
On Jan. 7, the day those revelations were published, Attorney General Beau Biden launched an investigation into why the medical board was never notified after Bradley's sister's 2004 report and the 2005 criminal investigation. The next day, Markell launched a separate probe into how Delaware's child-protection and medical-oversight system failed so miserably.
While those inquiries were going on, Beebe officials revealed in an interview that in 1996, they had investigated a nurse's complaint that Bradley conducted too many catheterizations. She complained about how he positioned girls when examining them for labial adhesions and also was troubled by his excessive kissing of girls and his sexist remarks about mothers. Beebe cleared Bradley of any wrongdoing.
The report by Biden's office and the report for Markell by Linda L. Ammons, dean of the Widener University School of Law, were released in May and castigated prosecutors, police, Beebe, the Medical Society, Scott and others.
While Biden's report did not address his office's own 2008 investigation into reports by three patients about improper exams -- Biden contended the December 2009 arrest was part of the same probe -- Ammons concluded that prosecutors should have notified the board in January 2009 when a judge denied their request to search Bradley's BayBees Pediatrics office on the outskirts of Lewes.
The report also disclosed that the medical board itself learned about a July 1994 investigation by Philadelphia police and Pennsylvania licensing authorities into a mother's report that she found Bradley with his hand down the front of her 21-month-old daughter's diaper. Bradley was cleared of those allegations, and Delaware -- which had licensed him that April -- did nothing. Biden's office concluded that the medical board was required by law to conduct an investigation.
The reports included dozens of recommendations, many of which were addressed in the new laws.
Raymond L. Moore Sr., chairman of the medical board, credited The News Journal with exposing the years of allegations and inaction, saying it was needed to prompt officials to take swift action.
"We would not have known about it without your articles," Moore said. "The public would not have known about it."
Stronger safety net
While Keeley, Moore and others said more can still be done in future legislative sessions, they agreed the safety net to protect children from abusers has been strengthened because doctors will be more closely watched, government agencies and private institutions must share more information, and all parties must comply with more stringent rules.
Former House Majority Leader Wayne Smith, who now heads the Delaware Healthcare Association, which represents hospitals and other medical organizations, called the package "a well-balanced group of bills."
Keeley said she had been pushing to have the 16-member board's seven non-physician seats open to citizens who have health care backgrounds, but met resistance from the Medical Society and others. She was able to get it passed this year.
Nurses and others with a medical background "understand the mumbo jumbo that doctors use to talk over the heads of other members about," Keeley said.
Mark A. Meister, executive director of the Medical Society, said his group of 1,200 practicing Delaware doctors does not support that change. "It's silly to draw the conclusion that physicians would try to buffalo people with medical terms," he said.
Despite that difference of opinion and Meister's insistence that the Medical Society had no "failures" in handling the report by Bradley's sister, Meister said "there is a lot of good here that can be drawn from the legislation. It is clearly heightening the awareness of the duty to report suspected misconduct and increasing the tools the board has to expedite an investigation and be very thorough in their communication with law enforcement."
While Ammons had urged that the board permit anonymous complaints, the new laws do not -- but complaints can now be made verbally. Previously, they could be accepted only in writing.
Collins said reports have increased dramatically since the Bradley cases were exposed and his agency notified health care providers, institutions and police agencies about their duty to report. As of June 30, the division had received 123 complaints about doctors, compared with 112 all of last year. To date, 51 investigations have been started, compared with 93 all of last year.
"We have a number of very serious cases at this point," Collins said.
The bills did not address Bradley's primary modus operandi -- taking children out of the exam room after appointments to other rooms where he allegedly raped or fondled them.
"That's certainly something to think about," said state Solicitor Lawrence W. Lewis, who conducted the review for Biden.
The bottom line, though was expressed by state Sen. Brian Bushweller during Markell's signing ceremony in front of Legislative Hall.
The Bradley debacle, Bushweller said, "caused unspeakable hurt that will take years to overcome, put an indelible stain on the fabric of our state and caused revulsion among virtually all Delawareans. These bills will substantially decrease the likelihood of these events ever happening again."
Highlights of changes to medical oversight and child protection laws:
•Physicians seeking to get or renew a license must disclose previous investigations into their behavior.
•The medical disciplinary board can force hospitals and other health care institutions to release records of previous investigations of a doctor's conduct.
•All hearings of the medical board on alleged misconduct will be held in public.
•Doctors accused of improper behavior won't have a right to know who made the complaint.
•The medical board can expedite suspensions when it determines there is a threat to the public.
•Each doctor must be fingerprinted, and the board must conduct a criminal background check every six months.
•A chaperone must be present when a child under 15 is at least partially disrobed for an exam of private areas of the body. Physicians must notify the patient's parent or caretaker of this requirement.
•The medical board has the power to suspend or revoke a doctor's license for failing to report suspected misconduct by a colleague.
•The medical board can now receive verbal complaints, not just those in writing.
•Physicians, police and prosecutors must take training courses in recognizing and reporting child abuse.
•The medical board's seven nonphysician members -- out of 16 -- can have a health care background.
•A health care provider can be sued for sexual abuse of a child at any time after the act; the law previously said claims had to be filed within two years after the abuse.
Bill Summary:
SENATE BILL 296
· Reorganizes the Board of Medical Practice to increase the number of public members
· Renames the Board of Medical Practice the Board of Medical Licensure and Discipline
· Gives the Board the ability to expedite suspensions of medical licenses where there is a threat to the public
· Gives the Board expanded authority to obtain information from peer review panels. Previously, the Board was only allowed to get peer review documents when the panel disciplined a physician. SB 296 opens that up ?“ to give the Board the ability to investigate peer review panels without regard for whether the panel disciplined the doctor or not.
SENATE BILL 297
· Promotes the reporting of child abuse and allegations of unprofessional practice by healthcare practitioners and institutions by:
o allowing the Dept of Health and Social Services to discipline hospital and nursing facilities licensed by the Dept if they fail to make mandatory reports of child abuse; and
o Increasing the potential civil penalties for persons or entities who fail to report child abuse to the child abuse hotline.
SENATE BILL 298
· Gives, for the first time, the Board of Medical Practice the authority to impose fines on hospitals, other health care institutions and the Medical Society. All of those entities had a duty to report physician misconduct to the Board of Medical Practice, but the Board could not impose sanctions for failing to do so. This bill corrects that.
· SB298 also increases the potential fines for unprofessional conduct by a physician ?“ so that the Board will have real teeth to enforce those monetary penalties.
SENATE BILL 229
· Clarifies who is in a "position of trust" for purposes of various sexual assault crimes.
· Reorganizes the current elements of "position of trust" within the rape and unlawful sexual conduct statutes into a new crime known as "sexual abuse of a child by a person in a position of trust, authority or supervision."
· Applies the "position of trust" category to other acts of sexual abuse that do not currently have any enhancement when perpetrated by a person in a "position of trust," including sexual extortion, sexual harassment, and indecent exposure.
HOUSE BILL 456
· Requires that there be another adult in the room when a physician is treating a person 15 years of age or younger and the child is disrobed or otherwise undergoing certain physical examinations.
· Requires that physicians give notice to parents that they have a right to have a chaperone present when their child is being examined.
HOUSE BILL 457
· Enacts the recommendations in the Ammons and Attorney General’s report that professionals receive additional training in recognizing and reporting child abuse and creates new training requirements for physicians, police and prosecutors.
HOUSE BILL 458
· Reforms how we license Delaware physicians. For example, many Delaware physicians have never had any criminal background check.
· Requires all physicians ?“ both currently practicing and new physicians ?“ to undergo the same kind of background check that we require of teachers and other professionals who work with youth.
HOUSE BILL 459
· Improves the reporting process of the Board of Medical Practice by strengthening the Board's authority to police unprofessional conduct and clarifying and simplifying the Board's administrative procedures to improve the efficiency of the board and its ability to work with law enforcement.
· This act also makes certain similar changes that would affect all boards administered by the Division of Professional Regulation.
HOUSE BILL 485
· Improves communications between the Division of Professional Regulation and the criminal justice community by requiring the Division of Professional Regulation to report criminal activity to the DELJIS (Delaware Criminal Justice Information System).
