"License to harm" series reveals a regulatory system in disarray

Washington state health-care regulators surprised us when confronted with the findings in today's Seattle Times special report, "License to Harm." They thanked us.

"They were aghast. They were stunned. And they were thankful," said Michael Berens, one of two lead reporters on the investigation. "It's odd that an agency thanks you for the work that you've done and immediately takes concrete action." What Berens and reporters Julia Sommerfeld and Carol Ostrom had done was to provide the first-ever comprehensive examination of how the state deals with health-care professionals accused of sexual misconduct. The reporters found a regulatory system so riddled with flaws that it truly was a license to harm.

The system is highly complex, with oversight scattered among the Department of Health and 16 professional commissions and boards responsible for 57 professions and more than 300,000 professionals. "With all of these moving parts, no one stood back and took a look at the whole," Berens said.

The case that first got his attention was a Kirkland psychologist who had sex with a female patient. Regulators concluded that the psychologist could continue to treat women but only those older than 50. As absurd as that seemed, Berens came to realize it wasn't unusual.

"Sexual misconduct in health care is not new, and I wasn't struck by the number of cases. I was struck by how the state deals with them," he said. "Sexual misconduct is treated as a medical error or routinely dismissed and forgiven."

The state doesn't classify discipline in consistent ways, so Berens had to scour thousands of documents just to launch the investigation. "We had to read every case," he said, and many files were opened for the first time only after legal challenges by The Times.

Data from 1995 to 2005 were compiled in a custom-built computer database, quantifying 90 fields of information to determine who was doing what, where, how and to whom. Berens, Ostrom and Sommerfeld, who now works for MSNBC.com, then did the interviews that make this series such compelling reading.

"It makes you queasy, but I think people will see the fundamental importance of the subject," Berens said.

The reporter calls the database the statistical backbone of our series: "It allowed us to definitively say, here's the problem."

Today through Tuesday, The Times presents its disturbing findings. For example, in the past decade, state regulators dismissed almost a third of all sexual-misconduct complaints without any investigation. Even when charges were investigated and found valid, there were no consistent guidelines for discipline.

Health-care professionals can negotiate settlements rather than go through public hearings. Settlements don't require them to acknowledge guilt, and the accused are allowed to edit findings so details of their behavior are left out of the final public document.

"They sanitize the record," Sommerfeld said, and that leaves the public in the dark.

The health-care practitioners with the most cases of discipline for sexual misconduct are "registered counselors." The only requirement to be licensed as a registered counselor is four hours of AIDS-awareness training and $40. The license requires no other training, competence or skill, not even a high-school diploma.

In about half of the cases where sexual misconduct occurred, the doctors and counselors involved went back to work with scant oversight. Like the Kirkland psychologist, they may face some boundaries but they are able to keep practicing.

"You can't simply put people back to work without any attempt to determine the underlying issues. If they are that risky, why are they working?" Berens said. Yet, that is happening, and the risk of reoffending is much higher than it would be with long-term care or therapy.

Reforms already are under way as a result of the investigation, and Berens said he is encouraged by the initial response. For example, the Department of Health has vowed that all sexual-misconduct complaints will be investigated. Discussions are under way to develop consistent discipline guidelines.

The Times identified other reforms that should be easy to implement, such as conducting criminal-background checks of practitioners coming from other states. "This is a tremendous loophole that remains in the system," Berens said.

"It seems so simple and clear. It doesn't even have to cost the public anything because the cost of the background check can be made part of the license fee."

Another loophole is that no background checks are done when licenses are renewed. A license can be renewed for decades even if the practitioner has committed crimes since it was first issued.

When The Times compared licenses to criminal records we found obvious dangers. When we showed the results to the state, three licenses were quickly revoked. "Scores of investigations have been opened because of our reporting," Berens said.

He said he hopes the series will encourage more victims to come forward: "It's a very uncomfortable subject, even for health-care providers. No one wants to talk about it."

Almost all health-care professionals are honorable and, like the regulators, they want the system to work effectively. Berens hopes the series will help people "be more aware of our rights and better protect ourselves from the very few who would violate our trust."

Inside The Times appears in the Sunday Seattle Times. If you have a comment on news coverage, write to Michael R. Fancher, P.O. Box 70, Seattle, WA 98111, call 206-464-3310 or send e-mail to mfancher@seattletimes.com.

More columns at www.seattletimes.com/columnists