New Hampshire Department Of Justice Calls For Greater Transparency For Board Of Medicine

Calls For Greater Transparency For Board Of Medicine: The New Hampshire Department of Justice (“DOJ”) reviewed the practices and procedures of the New Hampshire Board of Medicine (“BOM”) during the two-plus decade period from approximately 1994 through 2019 (the “Review Period”) after the New Hampshire Governor and Attorney General agreed that such a review was necessary after the Boston Globe ran a series of disturbing articles concerning a cardiac surgeon with a history of 21 medical malpractice claims in New Hampshire.

In September of 2022, the Boston Globe’s articles took a deep dive into the professional life of now-retired cardiac surgeon Dr. Yvon Baribeau, who practiced at Catholic Medical Center in Manchester (“CMC”), from approximately 1994 to 2019. The Boston Globe concluded that Dr. Baribeau “has one of the worst surgical malpractice records among all physicians in the United States.” According to the Boston Globe, Dr. Baribeau “has settled 21 malpractice claims … including 14 in which he is accused of contributing to a patient’s death.” The Boston Globe asserted that this is “the largest cluster of malpractice settlements from surgery-related deaths involving a single physician in recent US history.”

CMC explained in its response to the Boston Globe’s inquiries that the number of complaints/lawsuits resulted from the fact that Dr. Baribeau-as a highly skilled cardio-thoracic surgeon-was often tasked with the most severe and difficult cases and that those cases are simply more likely to have negative outcomes (and hence, result in
claims/complaints) even if the surgeon performs appropriately.

Apart from the specific assertions about Dr. Baribeau’s unfitness as a surgeon, the Boston Globe’s “Spotlight” series also stated that “New Hampshire’s medical licensing agency is one of the least transparent [in the country].” The Boston Globe reported that “[s]tate officials said they don’t see it as their role to inform the public about all aspects of a doctor’s troubled history and also want to protect physicians’ privacy.” The Boston Globe also claimed the New Hampshire disciplinary system is too lenient, citing a national study that found New Hampshire to be “the weakest among the 50 states in disciplining troubled doctors.”

New Hampshire Board Of Medicine

The New Hampshire Board of Medicine is established in RSA Chapter 329 with the “primary responsibility and obligation” to “protect the public from the unprofessional, improper, incompetent, unlawful, fraudulent, and deceptive practice of medicine.” RSA 329:1-aa. The Board fulfills this obligation, in relevant part, by taking disciplinary action against a physician’s license to practice when the individual has engaged in misconduct as set forth in RSA 329:17. The Board is also empowered to issue “nondisciplinary confidential letters of concern” to address a physician’s practices or activities. RSA 329:17, VII-a. Misconduct complaints made to the Board and investigations of those complaints are confidential. RSA 329:18. When the Board determines disciplinary action is appropriate for a particular misconduct complaint, the hearing on such action and any resulting decision is public. RSA 329: 18-a. With regard to Dr. Baribeau, there was no public disciplinary action taken by the Board of Medicine during the period of his licensure.

The New Hampshire DOJ review reported that in 2022 there were 147 complaints filed with the BOM with 17 licensure actions by the BOM. In 2021, the BOM received more than 215 complaints and concluded 9 disciplinary actions. Letters of Concern (LOC) are not “disciplinary actions” and are therefore not public.

The New Hampshire DOJ review recommended that that policymakers should consider making LOCs public. The DOJ asserted that the fact that the BOM currently has available to it a formal mechanism to express “concern” about an individual’s professional conduct in a nonpublic setting might be part of the reason that the BOM appears to act on complaints at such a low rate compared to its peers in other states. The DOJ further recommended greater transparency, more efficient investigations and dispositions of complaints, and more robust and effective data collection tools for investigators. Nonetheless, the DOJ found that the BOM followed the correct statutory processes in the matters during the Review Period, including with regard to Dr. Baribeau.

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