"An inherent conflict of interest": State medical boards often fail to discipline doctors who hurt their patients

Jeremy Payne and Dawn Bell didn't know each other, but one tragic fact gave them something in common: Both their parents were injured during surgery at the same hospital in Indianapolis by the same physician.

Payne's 46-year-old mother Regina Bruce had spinal surgery in 2008 after being rear-ended in a car accident. 

Bell's father, Thomas Cox, went in for a spinal fusion a few years prior. During Cox's procedure, the surgeon got sick and had to halt the procedure.

Both operations were conducted by orthopedic surgeon Dr. Steven Svabek. The surgeries left Payne's mother with her left leg paralyzed and Bell's father with nerve damage. Both reached medical malpractice settlements with Svabek. Both turned to opioids to manage their pain and never fully recovered. Both have since died.

According to state and court records, Svabek lost his surgical privileges at two Indianapolis hospitals after his "practice fell below the standard of care," and concerns were raised about his "honesty and truthfulness." Svabek lied about losing privileges to the Indiana Medical Board and was fined $500.

In addition, Svabek has settled five malpractice suits over more than a decade, the most of any orthopedic surgeon in Indiana over the last 20 years.

But even as his malpractice cases mounted, they did not trigger any suspension or license revocation from the medical board.

Doctors are licensed by state medical boards, panels made up almost entirely of fellow physicians, typically selected by the state's governor. CBS News spoke with more than 100 malpractice attorneys in all 50 states and heard the same message over and over: Medical boards do a good job weeding out doctors who have broken the law — say, for overprescribing opioids — but when it comes to doctors who commit malpractice and hurt their patients, medical boards often look the other way.

"State medical boards have the authority to take disciplinary action if the medical practice act is violated," the Federation of State Medical Boards, an umbrella group representing boards across the country, said in a statement to CBS News. It continued, "A medical malpractice claim does not necessarily mean there was a violation of a medical practice act or grounds for a finding of unprofessional conduct. It's important to note that not all medical malpractice settlements infer that malpractice occurred."

"We have almost like this cloud of secrecy around the medical profession," says Tina Bell, an attorney in Indianapolis who's been involved in cases against Svabek. Court agreements keep Bell — no relation to Dawn Bell — from discussing Svabek. The attorney, who worked on behalf of hospitals and insurance firms before representing malpractice victims, told CBS News that it's possible for doctors to hurt patients as many as five times with no impact on their medical license.

Doctors with multiple malpractice claims "are the doctors that worry me," Bell says. "Those are not the doctors that I'm seeing getting reprimands from the medical licensing board. So there is a gap where they're falling through the cracks somehow in Indiana."

Asked if the medical board is protecting patients or protecting doctors, Bell says, "I would say protecting doctors."

"What folks have to realize is that the medical board is not a substantial barrier to them being injured by a physician," says Dr. John Hall, who spent 25 years practicing pediatric anesthesia and critical care before becoming the executive director of the Mississippi Medical Board.

"Most medical boards are constituted of physicians who are political appointees," Hall says. "That is an inherent conflict of interest."

After Hall pushed the Mississippi Medical Board to be more aggressive in disciplining doctors, he found himself out of a job. 

"I believed in the mission of the medical board," Hall says. "And I thought this is a place where I could do this and do some good." He believes he was pushing too hard.

"It's a very small proportion of physicians that have caused a bulk of the problem," says Robert Oshel, who spent 15 years at the federal Department of Health and Human Services in Washington where he worked with the National Practitioner Databank, a federal database used by hospitals to keep track of bad outcomes by doctors.

Oshel scoured the databank and calculated that 1.8 percent of doctors are responsible for more than half of all malpractice payouts. Of that small group, "Only 1 in 7 have had action taken against them by any state."

Svabek kept his license in Indiana but relocated to Florida. Records from the Florida Board of Health show that Svabek has since been sanctioned three times, including for operating on a patient's right hip instead of his left. He was fined $7,500.

When a CBS News producer caught up with Svabek in Florida and questioned him about his history, Svabek said: "Really didn't have any comments to make about any of those questions, no." In response to questions about the sanction the Board of Health placed on him for operating on the wrong hip, known as a "wrong-site procedure," Svabek said, "It's not true. I don't know where you're getting your information."

Indiana's medical board was made aware of Svabek's problems in Florida and held a hearing that CBS News attended. When Svabek's case came up, Svabek was not present. Nor did he have an attorney there to represent him.

The Indiana board fined Svabek $1,000. The Indiana Medical Board didn't make Board President Dr. John Strobel available for an interview. So at a board meeting, CBS asked Strobel about Svabek's case, including if the $1,000 sanction was consistent with the Indiana Medical Licensing Board's mission to protect the public.

Strobel didn't respond to CBS News' questions.

With additional reporting by Jessica Kegu, Christopher O'Brien, Jared Kofsky, Eric Benninghoff, Elizabeth Gravier and Sophia Kolodzinski.