I-Team: Insiders say state investigations of bad doctors blocked

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by Dave Fehling, 11 News

khou.com

Posted on February 7, 2011 at 11:17 PM

Updated Tuesday, Feb 8 at 12:56 AM

HOUSTON -- Some former insiders of an obscure state agency are now charging that bad doctors are getting away with fraud in the millions of dollars.

The Texas Division of Workers' Compensation, by law, is supposed to make sure doctors provide good care at a fair cost to injured workers --  care that employers pay for through workers’ comp insurance.

But if those doctors chose to try to bilk the system, the agency has investigators who are supposed to catch it.

Now, those former insiders are telling the 11 News I-Team that was not happening.

"If you're a dishonest doctor, workers' comp is a gold mine for you. It's a gold mine because there is very little oversight and all's you got to do is, you can over-treat people," said Dr. Ken Ford, a retired orthopedic surgeon who practiced for over two decades in Houston.

Six years ago, he agreed to lend his expertise to the state of Texas. An obscure office called the Medical Advisor to the Commissioner of the Division of Workers’ Compensation hired him to help find those doctors cheating the worker's comp system.

"Oh we found a lot of evidence," said Ford as he sifted through files of doctors who’d been flagged for doing huge numbers of workers’ comp patients, or on whom the division had received complaints.
"There were, I'd say, in the hundreds (of doctors.)"

But a funny thing happened when Ford and the staff at the Texas Workers Comp office in Austin started preparing cases against the supposedly bad doctors.

"We were closing in on them, we'd done the reviews, we were about to kick them out," he said. Then, Ford said, "The Commissioner came along and tossed all those reviews out."

Why?

The Commissioner of the Texas Division of Workers' Compensation is Rod Bordelon. Bordelon said Ford had not followed the proper procedure for picking doctors to review. Baffled by that, Ford and two other doctors who'd been doing the reviews sent Bordelon a memo that said the agency had a legal and ethical obligation to pursue cases against bad doctors, and to not do so meant "patients are being harmed." (Click here to see memo on page 46 of this state audit.)

"He ignored the memo," said Dr. Ford. "After that happened I decided to quit, it was not right."

But Ford wasn't the only one to leave the agency in disgust. Cathleen Lockhart is a former nurse and now an attorney, practicing law in San Antonio. In 2009, the workers comp office hired her to bring cases against bad doctors. She ended up working with Ford. Lockhart said that upon her arrival, she found that the agency had virtually stopped doing reviews of suspicious doctors.

"Before I got there, they didn't do anything with them. They were in boxes and nobody was looking at them," said Lockhart.

 A Texas State Audit released this past November found cases of bad doctors languishing for months, one it found had been sitting for three years with no action taken.

Lockhart said she began preparing cases against several doctors, actually getting one to agree to get out of the workers' comp system entirely.

She was deeply troubled, she said, when Commissioner threw-out that case and seven others.

Lockhart was later fired and became suspicious that politics played a part.

"The leaders of Texas do not consider the injured workers an important voting bloc. But doctors are," Lockhart said.

That suspicion of political favoritism for doctors was first reported by the online Texas Tribune. An article detailed what would become a key issue investigated by a legislative committee. One doctor in East Texas who learned he was under review complained to his state representative who then called Commissioner Bordelon, according to the Texas Tribune and testimony before a legislative committee in Austin.

"Well this legislator had been concerned we had been unfairly targeting this particular doctor," Bordelon testified before members of the Texas House of Representatives Committee on Business and Industry. Bordelon said the call led him to investigate his own office. He concluded his staff was being un-fair.

"We were utilizing resources of the state to inappropriately target doctors individually," Bordelon testified back in September. He alleged that Ford and other staff members targeted certain doctors instead of using a random selection process he said was the official policy.

"What is the motivation, I don't know," said Bordelon.

But members of the Committee asked: “What policy?”

Legislator: "I can't find that process anywhere."

Bordelon: “We established the process.”

Legislator: “Where?”

Bordelon: “It’s not in the statute.”

Legislator: “It’s not in rule.”

Bordelon: “It’s not in rule, there's a number of internal procedures we have that are not in rule."

The chairman of the committee, Rep. Joe Deshotel, a Democrat from Beaumont, later told the 11 News I-Team that he didn’t believe the Commissioner’s explanation for throwing out the cases.

 “I don’t buy that. It was a convenient cover,” he said.

 Ask to comment on the commissioner taking action following the complaints of the Tyler doctor, Rep. Deshotel said: “That’s what precipitated the hearing …that shouldn’t happen. That’s why I want to move it (the medical advisor) out of the division, take out the political pressure.”

Ford denies he or the staff did anything wrong.

"He (Bordelon) doesn't know what he's talking about. We followed exactly what we were supposed to do … it's all a smokescreen," Ford said.

The fired attorney for the medical advisor, Cathleen Lockhart, now practices medical malpractice law in San Antonio. She said it’s a shame that the doctors she felt she could prove were bilking the system could still be free to do it.

11 News asked to interview Commissioner Bordelon and, at first, his office agreed but then later declined. In recent weeks, two committees of the Texas legislature have proposed changes.

One is that the medical advisor’s office not be required to use a random process to select doctors to investigate, but rather scrutinize those that have the highest billings. Another proposal is that the workers comp commissioner get approval from higher-ups before throwing out cases against doctors under suspicion.

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