[*] The author thanks her mother, June, for her patience, support, and guidance. The author would also like to thank Ralph Artigliere, Tom Surgent, and those who contributed to the editing and publication of this Comment. Return to text.

[1] See Robert S. Adler, Stalking the Rogue Physician: An Analysis of the Health Care Quality Improvement Act, 28 AM. BUS. L.J. 683, 741 (1991) ("Society has reached a point where citizens no longer view the medical profession with an uncritical eye and unquestioning faith."); Esekiel J. Emanuel & Linda L. Emanuel, Preserving Community in Health Care, 22 J. HEALTH POL., POL'Y & L. 147, 148 (1997) ("No longer given free rein, physicians and hospitals are being asked to provide information and to justify their practices."). Return to text.

[2] See State Increases Access to Physician Data, 23 HEALTH LEGIS. & REG. WKLY. (Apr. 9, 1997), available in 1997 WL 8740264 [hereinafter State Increases Access]. Consumer-driven legislation has led to the disclosure of various types of information. In Illinois, a bill would require telephone hotlines to provide information about criminal convictions, disciplinary action, and license restrictions. See id. In Delaware, a bill would allow the Board of Medicine to subpoena previously privileged peer review and quality review records to enhance consumer complaint investigations. See id. Maryland previously prepared reports in response to written consumer requests that include information on all claims against a given physician, whether a payment was made or not. See id. However, physicians objected to legislation that would have allowed the public to obtain this information on the Internet. This legislation was shelved and an agreement was reached between physicians and the Maryland Medical Association that "only final adjudicated malpractice data" should be provided to consumers. Id.; see also Mass. Consumers Gain Access to MD Data, 13 MED. MALPRACTICE L. & STRATEGY 1 (1996) [hereinafter Consumer Access] ("[S]igns point toward more health care information being put in the hands of the public . . . [it is] 'an inexorable trend across the country.'" (quoting David B. Nash, Director of Health Policy and Clinical Outcomes at Thomas Jefferson University Hospital in Philadelphia)). Return to text.

[3] See 42 U.S.C. §§ 11131-11151 (Supp. 1995) (requiring certain entities to report malpractice disciplinary action and obligating hospitals to obtain such information); MASS. GEN. LAWS ch. 112, § 5 (1996) (requiring physicians to report biographical information for a physician profile, and requiring the Board to investigate complaints, hold hearings, take disciplinary action when appropriate, and establish a risk management unit to prevent future claims); FLA. STAT. § 455.5651 (1997) (requiring physicians to provide biographical information, including any criminal offenses or final disciplinary action against them, and requiring the Department of Health to compile information and submit it to the public); Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 480 (1990) (holding that the plaintiff stated a cause of action against his physician, as well as others, for their failure to disclose their personal interest, unrelated to plaintiff's health, in using plaintiff's cells in potentially lucrative medical research); Hidding v. Williams, 578 So. 2d 1192, 1198 (La. Ct. App. 1991) (holding a physician liable for malpractice for failing to obtain informed consent from the patient before surgery by failing to educate the patient on the risks associated with the procedure as well as the physician's alcohol abuse). Return to text.

[4] See discussion infra Part IV; see generally Emanuel & Emanuel, supra note 1; Hidding, 578 So. 2d at 1198 (holding that the patient had a right to know about the physician's alcohol abuse when deciding whether to have surgery). Return to text.

[5] See State Increases Access, supra note 2 (explaining that Florida, Delaware, Maryland, Vermont, Connecticut, California, Massachusetts, and New York all have pro-consumer laws in effect or under consideration). Return to text.

[6] See infra notes 174-78 and accompanying text (discussing the Entman study and its findings). Return to text.

[7] See Frances H. Miller, Illuminating Patient Choice: Releasing Physician-Specific Data to the Public, 8 LOY. CONSUMER L. REP. 125, 125 (1996). Return to text.

[8] See generally Mary Anne Bobinski, Autonomy and Privacy: Protecting Patients From Their Physicians, 55 U. PITT. L. REV. 291 (1994); Emanuel & Emanuel, supra note 1, at 148; Mark Fajfar, An Economic Analysis of Informed Consent to Medical Care, 80 GEO. L.J. 1941 (1992); Miller, supra note 7, at 125-26; Douglas Sharrott, Note, Provider-Specific Quality-of-Care Data: A Proposal for Limited Mandatory Disclosure, 58 BROOK. L. REV. 85 (1992). Return to text.

[9] See Fajfar, supra note 8, at 1941. In Natanson v. Kline, 350 P.2d 1093, 1106 (Kan. 1960), the Kansas Supreme Court launched the trend in treating failure to obtain consent to treatment as negligence. The court held that a physician must provide a patient with sufficient information to allow the patient to understand the treatment prior to consent to such treatment. See id.; see also Fajfar supra note 8, at 1943. Return to text.

[10] See Hidding v. Williams, 578 So. 2d 1192, 1194 (La. Ct. App. 1991) (stating that a physician is required to provide the patient with enough information to allow the patient to make an informed and intelligent decision about submitting to a proposed course of treatment); Moore v. Regents of the Univ. of Cal., 793 P. 2d 479, 483 (1990) (stating that when obtaining informed consent, "a physician has a fiduciary duty to disclose all information material to the patient's decision"); Fajfar, supra note 8, at 1943 (arguing that treating patients without their consent violates the physician's fiduciary duty to patients and that patients have the "right to informed self-determination"); Miller, supra note 7, at 125 (stating that some would argue that the "informed consent doctrine should not be extended beyond a patient's right to information about the risks and benefits of recommended therapy"); Sharrott, supra note 8, at 85-87 (stating that physicians must respect patient autonomy in making decisions regarding the patient's course of medical treatment by providing the patient with enough information to make an informed decision). Return to text.

[11] See Miller, supra note 7, at 125; Sharrott, supra note 8, at 86-88. Return to text.

[12] See Sharrott, supra note 8, at 87-91. Outcome data can be analyzed in two ways. First, the information can analyze and compare a physician's or hospital's services to the specific characteristics of the patient. Second, the information can analyze the "appropriateness of a given treatment to determine whether a particular procedure or diagnosis is overutilized or unnecessary." Id. at 87 n.6. Return to text.

[13] See Miller, supra note 7, at 125 (stating that patients choose a physician because of price and competence and because price is a diminishing factor with the growth of the managed care system, competence "constitutes the only other basis on which patients can make decisions about providers and treatment"). Return to text.

[14] See Brian Kibble-Smith & Arthur W. Hafner, The Effect of the Information Age on Physicians' Professional Liability, 36 DEPAUL L. REV. 69, 80-85 (1986) (discussing on-line information relating to medical treatment); Sharrott, supra note 8, at 86-87 (discussing on-line information relating to physician and hospital care). Return to text.

[15] See infra section II.C (discussing the balance between physician privacy and patient autonomy). Return to text.

[16] Former New York Supreme Court Justice Benjamin Cardozo penned the premise of informed consent: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body." Schloendorff v. Society of New York Hospital, 105 N.E. 92, 93 (N.Y. 1914) (holding that lack of patient consent to surgery results in the intentional tort of battery); see also Fajfar, supra note 8, at 1943. Return to text.

[17] See Fajfar, supra note 8, at 1943; Miller, supra note 7, at 125; Sharrott, supra note 8, at 120. Return to text.

[18] See Bobinski, supra note 8, at 292; see also Miller, supra note 7, at 125 (arguing that consumer ignorance significantly "contributes to a patient's inability to evaluate medical judgment"). Return to text.

[19] See Sharrott, supra note 8, at 119-20 (citing Mark V. Pauly, The Public Policy Implications of Using Outcome Statistics, 58 BROOK. L. REV. 35 (1992)). Return to text.

[20] See Miller, supra note 7, at 125 (citing Anthony Szczygiel, Beyond Informed Consent, 21 OHIO N.U. L. REV. 171 (1994)). Return to text.

[21] See Hidding v. Williams, 578 So. 2d 1192, 1194 (La. Ct. App. 1991); Moore v. Regents of the Univ. of Calif., 793 P. 2d 479, 483 (1990); Miller, supra note 7, at 125; Sharrott, supra note 8, at 141. Return to text.

[22] See Emanuel & Emanuel, supra note 1, at 156. Emanuel & Emanuel have developed an economic model of accountability in which patients are consumers who shop for health care seeking a satisfactory combination of price and quality, and care providers are "economic producers trying to sell their services as the best product for the lowest price." Id. The interaction will induce the care providers "to maintain or even enhance quality." Id. Return to text.

[23] See Robin Elizabeth Margolis, Dentists and Physicians Wiggling Out of National Practitioners' Data Bank?, 10 HEALTHSPAN 25, 25 (1993). Return to text.

[24] See Emanuel & Emanuel, supra note 1, at 156. Return to text.

[25] See id. at 166; Marc A. Rodwin, Managed Care and Consumer Protection: What Are the Issues?, 26 SETON HALL L. REV. 1007, 1018 (1996) (pointing out that although many consumers prefer traditional insurance to managed care, "employers and third-party payers often do not offer it or make it affordable"). Return to text.

[26] See Rodwin, supra note 25, at 1014 (arguing that this may lead to "shoddy treatment" by the managed care organization). Return to text.

[27] See Emanuel & Emanuel, supra note 1, at 156; see also Miller, supra note 7, at 126. Return to text.

[28] See Miller, supra note 7, at 126. Return to text.

[29] See id. Return to text.

[30] See Emanuel & Emanuel, supra note 1, at 156. Return to text.

[31] See Miller, supra note 7, at 126. Return to text.

[32] See Sharrott, supra note 8, at 122 (citing usefulness of "timely, accurate, understandable and well-presented" provider-specific outcome data as a means of making more informed provider and treatment decisions). Return to text.

[33] See id. at n.22. Sharrott notes that:

Provider-specific data may also be used to detect and identify low-quality provider performance. From this the number of low quality providers may be reduced by the following methods: (1) the providers may modify and correct their procedures, practices, and skills so that their performance is enhanced to acceptable levels; (2) if uncorrectable, the provider's license to practice the procedure in question may be revoked; or (3) the low-quality provider is driven out of business by market forces.

Id. at 124 (emphasis added) (citations omitted). See John D. Butler, GM's View on Purchasing High-Quality Providers, 61 HOSP. 90 (1987) ("In the old market of few providers and minimal competition, most providers could be confident of their survival. In the new market, no such assurances exist."). Return to text.

[34] See Bobinski, supra note 8, at 291. Return to text.

[35] See Stephen S. Entman et al., The Relationship Between Malpractice Claims History and Subsequent Obstetric Care, 272 JAMA 1588, 1591 (1994); see also Fitzhugh Mullan et al., The National Practitioner Data Bank: Report From the First Year, 268 JAMA 73, 78-79 (1992). Return to text.

[36] See supra note 2 and accompanying text; see also FLA. STAT. § 455.247 (1997); Miller, supra note 7, at 126 (citing MASS. GEN. LAWS ch. 112, § 5 (1997)). Return to text.

[37] See Consumer Access, supra note 2, at 1 (citing Mass. HB 5662 (1996) as providing data "that routinely is not available such as out-of-court settlements or the names of physicians whose hospital privileges have been revoked or restricted"). Though Massachusetts provides final decisions of hospital disciplinary bodies, pre-decision proceedings are confidential. See MASS. GEN. LAWS ch. 111, §§ 111, 204 (1997). Return to text.

[38] Much of the information is made public through court files, administrative hearings, and perhaps even licensing records. The average consumer may not have the general knowledge of the various agencies and courts to know where to look for the information or may not have ability to locate the data once there. Searching jury verdicts and court records can be a daunting task for someone unfamiliar with the legal system. Undoubtedly, other agency records would be equally as challenging to search for useful information Return to text.

[39] See Miller, supra note 7, at 135. Return to text.

[40] See AGENCY FOR HEALTH CARE ADMIN., FLORIDA REPORT ON PHYSICIAN DISCIPLINE AND MALPRACTICE 167-90 (1997) [hereinafter FLORIDA HEALTH CARE REPORT] (stating that closed medical malpractice claims constitute claims that have been resolved either in court or through a settlement). Return to text.

[41] Id. at 167. Return to text.

[42] See id. at 170. Return to text.

[43] See id. Return to text.

[44] Id. at 169. Return to text.

[45] See Scott S. Thomas, An Insurer's Right to Settle Versus Its Duty to Defend Nonmeritorious Medical Malpractice Claims, 16 J. LEGAL MED. 545, 550-55 (1995). Return to text.

[46] This is a real danger despite the language in the report indicating that both nuisance claims and significant claims often are settled early in the legal process. See FLORIDA HEALTH CARE REPORT, supra note 40, at 169-70. Return to text.

[47] For example, according to the report one physician faced three malpractice claims, each resulting from a death (severity code nine) and each resolved at legal stage four ("more than 90 days after suit filed and prior to or during the course of mandatory settlement"). The insurance policy limit was $1 million. In 1991 the first claim was resolved for $30,000, in April 1994 another claim was resolved for $1 million, and in September 1995 the final claim was resolved for $25,000. See FLORIDA HEALTH CARE REPORT, supra note 40, at 171. With identical outcomes and resolutions at the same stage, there is no way to determine the reason for the discrepancy in the indemnification. One might question the usefulness of this information, or at least this format, if the ultimate goal is to enhance a patient's knowledge about a particular physician so that the patient can make a more informed physician choice. In its current form, the only fact that a reader can determine is the amount of insurance this particular physician carries. Return to text.

[48] See Randall R. Bovjberg & Kenneth R. Petronis, The Relationship Between Physicians' Malpractice Claims History and Later Claims: Does the Past Predict the Future?, 272 JAMA 1421, 1425 (1994); Entman, supra note 35. Return to text.

[49] See Miller, supra note 7, at 127; see also Bovjberg & Petronis, supra note 48, at 1430. Return to text.

[50] Miller, supra note 7, at 127. Return to text.

[51] See Bovjberg & Petronis, supra note 48, at 1425. Return to text.

[52] Emphasis should, however, remain on quality of care rather than merely incompatible personas that lead to the filing of claims. See Entman, supra note 35, at 1588 (noting that the relationship between previously filed claims and future substandard care may be valuable, but warning that "if the frequently sued physician does not practice substandard medicine, but has, for example, poor interpersonal skills that promote claims, then the deterrent effect of the tort system may be targeting physicians because of their personalities and not the technical care they provide" (citations omitted)). Return to text.

[53] See Sharrott, supra note 8, at 126-31. Return to text.

[54] See id. (discounting the threat of unjust reputational harm by arguing: (1) that the only harm of "incorrect" provider choice based on publicly disclosed data is an economic loss that does not warrant a continued nondisclosure policy; (2) that physicians concerned with data complexity should contribute to making the data easier to comprehend rather than complaining of reputational harm that may be caused by inexact information; (3) that output data does not need to be complex, but rather can be simplified to provide a comparison of providers to the "average" or a ranking that is within the comprehension of the general public; and (4) that the very idea of withholding information is paternalistic and is contrary to public policy favoring government disclosure).

Sharrott admits that risk factors adversely affect the accuracy of provider statistics, but concludes that:

the data will always indicate that some providers are worse or better than they actually are, and in this sense, will always be unfair, either to the physician or the consumer. But is there a superior alternative? The haphazard qualitative methods now used by patients to select providers are just as unfair to both physicians and patients.

Id. at 130 (citations omitted). Return to text.

[55] Sharrott suggests that providers who are subject to a reasonableness standard in terms of preventing harm to their patients caused by medical malpractice should not demand perfection but merely reasonably accurate provider data. See id. This argument has limited appeal, especially to the physician who suffers a loss due to poor data representations. Return to text.

[56] See id. at 89. Return to text.

[57] See id. Return to text.

[58] See id. at nn.10-11. Risk adjustment theoretically permits physicians performing similar procedures to be compared equally by factoring out patient pre-treatment conditions such as degree of sickness or age. See id. Return to text.

[59] See id. at 88. Return to text.

[60] See id. at 94 ("There may be an increase in defensive medicine by providers, taking the form of an increased reluctance by providers to treat high-risk patients." (citing Joyce A. Lanning & Stephen J. O'Connor, The Health Care Quality Quagmire: Some Signposts, 35 HOSP. & HEALTH SERVICES ADMIN. 39 (1990), and "criticizing HCFA's attempt to provide consumers with a provider performance 'scorecard' since its punitive approach is more likely to result in greater defensive medicine and not better health outcomes")). Return to text.

[61] 793 P.2d 479 (Cal. 1990). Return to text.

[62] See id. at 483. Return to text.

[63] 578 So. 2d 1192 (La. Ct. App. 1991). Return to text.

[64] LA. REV. STAT. ANN. § 1299.40 (West 1997) Return to text.

[65] See Hidding, 578 So. 2d at 1196-97. Return to text.

[66] See Moore, 793 P.2d at 480. Return to text.

[67] See id. at 481. Return to text.

[68] Id. at 480. Return to text.

[69] Id. at 483 (quoting Cobbs v. Grang, 502 P.2d 1, 11 (Cal. 1972)). Return to text.

[70] See id. at 480. Return to text.

[71] See id. at 497. Return to text.

[72] See generally id. (discussing physicians' fiduciary duty and the duty to disclose); Hidding v. Williams, 578 So. 2d 1192 (La. Ct. App. 1991) (discussing same). Return to text.

[73] See Sharrott, supra note 8, at 94 (suggesting that publishing data in the public record could satisfy disclosure requirements in the scope of informed consent). Return to text.

[74] See Hidding, 578 So. 2d at 1192; FLA. STAT. § 455.565-.5651 (1997). Return to text.

[75] Hidding, 578 So. 2d at 1196. Return to text.

[76] Id. at 1195 (emphasis added). Return to text.

[77] Id. at 1196; see also Emanuel & Emanuel, supra note 1, at 158. Return to text.

[78] See Hidding, 578 So. 2d at 1196-97. Return to text.

[79] Repub., Brooksville. Return to text.

[80] See Fla. CS for SB 648 (1997) (codified at FLA. STAT. § 455.565-.5651 (1997)). Return to text.

[81] See id. Return to text.

[82] "Deviant" may mean the physician deviated from acceptable standards or is deviant in terms of misconduct. Return to text.

[83] Critics of the Board of Medicine peer review panels suggest that the Board is more interested in preserving its medical fraternity than ensuring the quality of care administered by the state's physicians. See Alan Judd, Disciplining Doctors: Board Seems Inclined to Defend Physicians, LAKELAND LEDGER, July 6, 1997, at A1. Return to text.

[84] See Emanuel & Emanuel, supra note 1, at 147. Accountability is the process by which a party justifies its actions and policies. Components of accountability include parties being held or holding others accountable, assessing domains and content areas, and procedures of evaluation. See id. Return to text.

[85] See id. at 152-53. In the professional model, health care is considered a professional service where, "Because the physician is primarily dedicated to the patient's well-being, the patient can be a trusting recipient of the physician's care, rather than a wary consumer in the marketplace." Id. at 153. Accountability in this model focuses primarily on physician competence and legal and ethical conduct. See id. Return to text.

[86] See id. at 156. Return to text.

[87] See id. In the economic model, "patients should be viewed as consumers who are shopping among managed care organizations for what they perceive to be the best combination of price and quality that satisfies their preferences . . . . [H]ealth care is properly viewed as a commodity; it is subject to supply and demand based upon price and perceived quality." Id.; see also discussion infra Part IV. Return to text.

[88] See Emmanuel & Emmanuel, supra note 1, at 158. In the political model, health care is a community service rather than a market commodity. Patients and physicians are part of the health system, as opposed to the economic model where patients are consumers and physicians are essentially the goods. See id. Return to text.

[89] See id. Return to text.

[90] See id. (citing A. HIRSCHIMAN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINES IN FIRMS, ORGANIZATIONS, AND STATES (Harvard Univ. Press 1970)); Rodwin, supra note 25, at 1013-14. Return to text.

[91] The weakness of this analogy is in the idea that data could simply be printed out, like a nutrition label, and the health care customer would know what he or she was buying in a physician. See Emanuel & Emanuel, supra note 1, at 168. Return to text.

[92] See id. at 151-52. For a general discussion of consumer fraud legislation as another means of redressing grievances against health care providers, see Lee Ann Bundren, State Consumer Fraud Legislation Applied to the Health Care Industry, 16 J. LEGAL MED. 133 (1995). Return to text.

[93] See Judd, supra note 83, at A1.

"The Board of Medicine has operated for a number of years within a professional cocoon," said Doug Cook, director of the state Agency for Health Care Administration, which prosecutes cases before the board. "We've tried to bring more aggressive consumer representation, and we've begun to sensitize the board." But he said: "In many cases, it is the 'distinguished professional' versus the aggrieved consumer. And it is the 'distinguished professional' who prevails."

The three-part exposé by Alan Judd was accompanied by a reader's poll that discusses the skepticism of the average consumer as well as the potentially irrational reliance a consumer may place on accessible data that could be misinterpreted. The poll posed this question: "Do you think patients should have access to records of investigations or complaints against doctors?" Of 40 respondents, 95% said yes and 5% said no. The responses speak for themselves:

Yes, the American Medical Association is a corrupt organization . . . Yes, they say that only doctors can bury their mistakes . . . Yes, the doctor has my life in his hands . . . Yes, doctors have been killing patients for way too long. It is about time someone watches these people . . . Yes, doctors always protect their own . . . Yes, there are way too many incompetent doctors that are only motivated by greed . . . Yes, doctors think they are God. Nay, complaints that have resulted in disciplinary action should be open to the public . . . Yes, and we should have a better balanced committee. This committee of all doctors is ridiculous . . . Yes, the medical industry is protecting killers . . . Yes, the patient should know a physician's professional history. The patient pays for quality care and should know, without a doubt, that it will be received . . . No, where does freedom end and slander begin? . . . No, patients, like members of the press, are not capable of determining both sides of the story. They can not make a proper assessment of a physician's actions.

Alan Judd, Disciplining Doctors: Accused Doctors Continue to Practice, LAKELAND LEDGER, July 8, 1997, at B1. Return to text.

[94] See Kathleen L. Blaner, Physician, Heal Thyself: Because the Cure, the Health Care Quality Improvement Act, May Be Worse Than the Disease, 37 CATH. U. L. REV. 1073, 1076 (1988) (referring to the Health Care Quality Improvement Act as Congress's attempt to "end this 'brotherhood of silence'"). Return to text.

[95] The data used to support this premise, in criticizing both the legal and medical professions, are based on the action or discipline ultimately administered in response to consumer complaints. For example, one legal reform group claimed that for the year 1988, less than 2% of the more than 70,000 complaints levied against attorneys resulted in public discipline, 90% were dismissed, and 8% resulted in non-public action. Similarly in California in 1986, 8574 attorney complaints were received. Of those, only 192 attorneys had formal charges against them, and only 185 eventually received sanction. See Linda Morton, Finding a Suitable Lawyer: Why Consumers Can't Always Get What They Want and What the Legal Profession Should Do About It, 25 U.C. DAVIS L. REV. 283, 305-06 (1992). Likewise, in 1996 the Florida Board of Medicine received 8000 complaints about physicians but ultimately punished only 191. The Board dismissed 90% of the cases it reviewed (only 1800 of the 8000 were reviewed; the remainder were presumably dismissed for a complete lack of reviewable conduct.) See Judd, supra note 83, at A Return to text.

[96] See Miller, supra note 7, at 128-29. Return to text.

[97] See Emanuel & Emanuel, supra note 1, at 151; Miller, supra note 7, at 130; Rodwin, supra note 25, at 1018; Sharrott, supra note 8, at 92-93. Return to text.

[98] See FLA. STAT. § 455.565-5651 (1997). Information such as the name of the physician's medical school and the date of graduation is easily interpreted. Currently, Florida requires practitioners to furnish the following biographical data: the name of each medical school that the applicant for licensure has attended, including the dates of attendance and the date of graduation as well as a description of all graduate medical education completed by the applicant; the name of each hospital at which the applicant has privileges; the address at which the applicant will primarily conduct his or her practice; any certification the applicant has received from a specialty board; the first year the practitioner practiced; current appointments to medical school faculty and any responsibility for graduate medical training in the previous 10 years; any criminal offense for which there was a finding of guilt whether adjudication was withheld or not (including any offense to which there was a guilty or nolo contendere plea—all crimes that would be a felony or a misdemeanor in Florida); and any final disciplinary action taken within the previous 10 years by the agency regulating the profession that the applicant has been licensed to practice (including resignation from or renewal of medical staff membership or the restriction of privileges at a licensed hospital, health maintenance organization, prepaid health clinic, ambulatory surgical center, or nursing home) taken in lieu of or in settlement of a pending disciplinary case related to competence or character. See id.

Comparatively, Massachusetts requires disclosure of the following biographical data: name; office phone numbers(s) and address(es); the nature of the practice (group practice, solo practice, hospital staff); the number of years in practice; medical license status; premedical and medical schools, including the years attended and the degrees awarded; postgraduate training; specialty; American Specialty Board certification, recertification, and eligibility for certification; current employment, including faculty appointments; health care facilities where the physician holds privileges; plans in which the physician is a provider; referred journal articles and book chapters; honors and awards; board or hospital disciplinary findings; criminal convictions; and malpractice summary (compared with norm for specialty). See MASS. GEN. LAWS ch. 112, § 5 (1997); see also Miller, supra note 7, at Appendix. Return to text.

[99] See Blaner, supra note 94, at 1095-96. Blaner argues that a report filed with the National Practitioners Data Bank:

destroys a physician's right to be presumed innocent . . . . [I]t will blemish the physician's professional reputation as long as the information remains in the data bank. Because the Act requires all facilities at which a physician practices to check the data bank routinely, a physician has little hope that the medical community will forget a mistake the physician made early in his or her career.

Id. (citations omitted). Return to text.

[100] See FLORIDA HEALTH CARE REPORT, supra note 40, at inside front cover. Return to text.

[101] See State Increases Access, supra note 2. Return to text.

[102] Id. Return to text.

[103] See Miller, supra note 7, at 127. The Committee's objective was to determine what and in what form data in possession of the Board of Registration in Medicine would tend to equalize the patient-physician relationship, increase accountability, and allow patient-consumers to make more informed choices about their health care. Return to text.

[104] Id. (citing MASSACHUSETTS ADVISORY COMM. ON PUBLIC DISCLOSURE OF PHYSICIAN INFO., FINAL REPORT (1995)) [hereinafter MASSACHUSETTS REPORT]. Return to text.

[105] See MASS. GEN. LAWS. ch. 112, § 5 (1997); see also Miller, supra note 7, at 127. Return to text.

[106] See State Increases Access, supra note 2 ("An initial barrage of 700-1000 calls a day nearly overwhelmed the system; however, by spring, calls leveled off to around 200 per day. Consumers can request up to 10 physician reports at a time, to be mailed or facsimileed the same day."). Return to text.

[107] See Consumer Access, supra note 2, at 2. Return to text.

[108] See Massachusetts Board of Registration in Medicine (visited April 2, 1998) .< R> State Increases Access, supra note 2 (quoting Massachusetts Medical Society President Joseph Heyman). Return to text.

[110] See id. Return to text.

[111] See Consumer Access, supra note 2, at 2-3.

Naturally, the Massachusetts medical community is critical of the bill. Arguments against it include that malpractice data do not reflect the quality of care, as physicians who take on higher-risk care will have the highest rates of malpractice judgments; that in cases involving HMOs, physicians may not be named as defendants, while independent practitioners do not have that advantage; that insurers often urge physicians to settle, rather than engage in costly litigation; and even that erroneous information might inadvertently be published.

Id. Return to text.

[112] See Mass. HB 5662 (1996) (codified at MASS. GEN. LAWS ch. 112, § 5 (1997)). Massachusetts House Bill 5662 was signed into law by Governor William Weld on August 9, 1996. See id. Return to text.

[113] See State Increases Access, supra note 2. Return to text.

[114] See MASS. GEN. LAWS ch. 112, § 5(q) (1997); see also Consumer Access, supra note 2, at 3. Return to text.

[115] Miller, supra note 7, at 128-34. Return to text.

[116] See id. at 129. Return to text.

[117] See id. Return to text.

[118] See State Increases Access, supra note 2; see also Miller, supra note 7, at 127-29. Return to text.

[119] See State Increases Access, supra note 2. Return to text.

[120] Dissatisfied patients include those who have suffered malpractice and have a legitimate claim, as well as those who have suffered no injury but file a claim. Return to text.

[121] See supra note 111 (discussing problems related to malpractice data). Return to text.

[122] See Entman et al., supra note 35, at 1588. Return to text.

[123] See Miller, supra note 7, at 127. Return to text.

[124] See Sharrott, supra note 8, at 126-27 (arguing this could lead to financial loss, ruined careers, and hospital closings). Return to text.

[125] See MASS. GEN. LAWS ch. 112, § 5(f) (1997); see also State Increases Access, supra note 2. Return to text.

[126] See MASS. GEN. LAWS. ch. 112, § 5(f) (1997). Return to text.

[127] See State Increases Access, supra note 2. Return to text.

[128] See id. (discussing hidden insurance related issues); see also Thomas, supra note 45, at 583 (discussing the rights of insurers, insured physicians, and the potential tension that arises when reporting requirements tarnish a physician's reputation). The article concludes that courts have a responsibility to protect the insurers' and physicians' rights while protecting the rights of the patients-consumers. Return to text.

[129] See, e.g., Miller, supra note 7, at 133. Return to text.

[130] See Bovjberg & Petronis, supra note 48, at 1421. Return to text.

[131] See id. at 1423; but see Entman et al., supra note 35, at 1588.

Conclusions.-No relationship was found between prior malpractice claims experience and the technical quality of practice by Florida obstetricians. Strategies that attempt to identify physicians at risk for future clinical errors by using data on prior malpractice claims (such as the National Practitioner Data Bank) may be misjudging the likelihood that substandard clinical care will be provided by physicians with prior claims.

Id. Return to text.

[132] See Bovjberg & Petronis, supra note 48, at 1421. Return to text.

[133] See id. Return to text.

[134] See id. Return to text.

[135] See id. at 1422. The Florida Medical Professional Liability Insurance Claims file is a state-maintained archive with information on all medical liability claims closed in Florida. This file is the compilation of data submitted, by law, by all Florida insurers and self-insurers concerning all claims filed, regardless of whether any payment was demanded or paid. The file, however, excludes physicians who have had no claims filed against them. See id. Return to text.

[136] This file contains "descriptive and demographic information about all physicians" and includes data on physicians without a claims history. Id. Return to text.

[137] See id. at 1425. Return to text.

[138] See id. at 1421. Return to text.

[139] Id. at 1424. Return to text.

[140] See id. The study examined claims from 1975-1983. Return to text.

[141] See id. at 1425. Return to text.

[142] See id. Return to text.

[143] See id. Return to text.

[144] See id. A physician-year is a full calendar year in which a physician practices and is exposed to potential claims of malpractice. Return to text.

[145] See Miller, supra note 7, at 133-34; State Increases Access, supra note 2. Return to text.

[146] Massachusetts' original, but not enacted, standard was the publication of any physician with any claims history, so only 20.2% of the physicians in the Florida study would have fit the no-claim requirement even though an additional 59.2% had claims which fell in the non-consequential claims category. See Bovjberg & Petronis, supra note 48, at 1425. Return to text.

[147] See Bovjberg & Petronis, supra note 48, at 1425. Return to text.

[148] Id. Return to text.

[149] See id. Return to text.

[150] See id. Return to text.

[151] See, e.g., Miller, supra note 7, at 133. Return to text.

[152] See Bovjberg & Petronis, supra note 48, at 1425. Return to text.

[153] Id. The study concedes that the "use of claims history [by patients] is more controversial." Id. Return to text.

[154] See discussion infra Part V.C.1. Return to text.

[155] See generally Blaner, supra note 94. Return to text.

[156] See Bovjberg & Petronis, supra note 48, at 1425. Return to text.

[157] Id. at 1426. Return to text.

[158] See supra Part III. Return to text.

[159] See Bovjberg & Petronis, supra note 48, at 1426. Return to text.

[160] See Miller, supra note 7, at 131; see also MASS. GEN. LAWS ch. 112, § 5 (1997). Return to text.

[161] See Miller, supra note 7, at 127. Return to text.

[162] For example, in Florida, the Board of Medicine, which serves as "the state agency responsible for protecting Florida consumers from incompetent, dangerous and predatory doctors," has 15 seats, 12 of which are held by physicians. Judd, supra note 83, at A1. Return to text.

[163] Among the most disturbing factors in the administration of discipline is the length and seemingly inconsistent treatment of cases. For instance, of the cases before the Florida Board of Medicine that closed in 1996, the average time that elapsed from the filing of a consumer complaint to final resolution by the Board was 27.1 months. See id.

The resolution of a disciplinary complaint is a three-step process in Florida. When a complaint is lodged against a physician, the complaint is reviewed by the AHCA to determine whether the allegations, if proven, amount to an actionable violation of the standard of care within the state. Of the 1996 closed cases, this first step took 6.4 months. See Judd, supra note 93, at B1.

Probable cause review is the second step. Cases alleging inadequate care are turned over to medical experts for review. Those cases involving substandard care and cases involving physician misconduct are then reviewed by a probable cause panel charged with determining whether formal charges should be brought against a physician. This phase took an average of 9.5 months. See id.

If the probable cause panel finds a violation, the AHCA files formal charges against the physician. The Board of Medicine then takes the case and makes a final determination of disciplinary action against the physician. This step averaged 11.2 months. See id. Return to text.

[164] See supra text accompanying notes 101-13. Return to text.

[165] See Bovjberg & Petronis, supra note 48, at 1425. Return to text.

[166] 42 U.S.C. §§ 11101-11152 (1994); see also Thomas, supra note 45, at 563-64. The NPDB faced opposition similar to that faced by state compiled profiles, which was the concern of Congress, and which resulted in the HCQIA "'weeding out incompetent and unprofessional physicians who change their practice locations after losing privileges at hospitals where the offending conduct occurred.'" Id. at 564 (citation omitted). The medical community, via the American Medical Association, despite opposing the NPDB, lobbied for the HCQIA on the premise "'that a national system of malpractice payment reporting would create a huge amount of complex and misleading information. They cited the variability in payments based on nuisance value, costs of litigation, specialty, jury sympathy to plaintiffs, and other factors.'" Id. (citation omitted); see also Margolis, supra note 23, at 25 ("While the general public regarded the Data Bank as a positive initiative, it was initially viewed by health care professionals with near-panic, because they feared that its existence would encourage an onslaught of frivolous malpractice litigation against competent practitioners.") Return to text.

[167] See Thomas, supra note 45, at 563-64. Return to text.

[168] Bovjberg & Petronis, supra note 48, at 1425. Return to text.

[169] See id. Return to text.

[170] VI. Malpractice Information

Some studies have shown that there is no significant correlation between malpractice history and a doctor's competence. At the same time, the Board believes that consumers should have access to malpractice information. In these profiles, the Board has given you information about both the malpractice history of the physician's specialty and the physician's history of payments. The Board has placed payment amounts into three statistical categories: below average, average, and above average. To make the best health care decisions, you should view this information in perspective. You could miss an opportunity for high quality care by selecting a doctor based solely on malpractice history.

When considering malpractice data, please keep in mind:

* Malpractice histories tend to vary by specialty. Some specialties are more likely than others to be the subject of litigation. This report compares doctors only to the members of their specialty, not to all doctors, in order to make individual doctor's history more meaningful.

* This report reflects data for the last 10 years of a doctor's practice. For doctors practicing less than 10 years, the data covers their total years of practice. You should take into account how long the doctor has been in practice when considering malpractice averages.

* The incident causing the malpractice claim may have happened years before a payment is finally made. Sometimes, it takes a long time for a malpractice lawsuit to move through the legal system.

* Some doctors work primarily with high risk patients. These doctors may have malpractice histories that are higher than average because they specialize in cases or patients who are at very high risk for problems.

* Settlement of a claim may occur for a variety of reasons which do not necessarily reflect negatively on the professional competence or conduct of the physician. A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred.

You may wish to discuss information provided in this report, and malpractice generally, with your doctor. The Board can refer you to other articles on this subject.

Massachusetts Board of Registration, supra note 108. Return to text.

[171] See FLA. STAT. § 455.5651(4) (1997).

If information relating to a liability action is included in a practitioner's practitioner profile, the profile must also include the following statement: "Settlement of a claim may occur for a variety of reasons that do not necessarily reflect negatively on the professional competence or conduct of the physician. A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred."

Id. Return to text.

[172] See 42 U.S.C. § 11137(d) (1994) ("In interpreting information reported under this subchapter, a payment in settlement of a medical malpractice action or claim shall not be construed as creating a presumption that medical malpractice has occurred.") Return to text.

[173] Entman et al., supra note 35, at 1590. The study was commissioned to investigate the link between prior malpractice claims and future claims. The study focused on obstetricians practicing between 1977 and 1983 in Florida, a particularly litigious state. See id. Return to text.

[174] See id. Return to text.

[175] Id. at 1588. Return to text.

[176] Id. at 1591. Return to text.

[177] See id. at 1588. Return to text.

[178] See id. Return to text.

[179] See FLORIDA HEALTH CARE REPORT, supra note 40, at title page. Return to text.

[180] According to the Florida Health Care Report, disciplinary charges are "based on Florida law, which identifies nearly 40 grounds on which a doctor can be disciplined." Id. at 5. The Florida Board of Medicine is the oversight board for all licensing and administrative procedures for medical doctors (similar boards exist for osteopaths, chiropractors, and dentists). Sanctions for violating the rules and laws regulating Florida physicians can range from assignments of continuing education and fines to license revocation. See id. at 5-6. Return to text.

[181] Administrative complaints against all health care providers in Florida are investigated by the Agency for Health Care Administration (AHCA). Administrative complaints are consumer complaints filed with the agency, which are only mere accusations that initiate investigation. These complaints are, however, public record, making them little different than a non-meritorious malpractice claim. The report lists recent complaints that have resulted in disciplinary action. See id. at 6. Return to text.

[182] Emergency actions are responses by AHCA to consumer complaints that reveal a physician may be an immediate threat to public health or safety. AHCA will issue an immediate suspension or restriction of the physician's license; meanwhile AHCA can proceed with its normal investigation or discipline. The number of emergency actions tripled in Florida from 1995 to 1996 for a total of 41 actions in 1996. See id. AHCA attributes the increase to Florida's "aggressive action against a very small number of unsafe physicians." Id. at 2. Return to text.

[183] See id. at 7. Return to text.

[184] See id. at 23. Return to text.

[185] See id. Return to text.

[186] See e.g., id. at 153-60 (listing, in chart form, the names of physicians who have complaints filed against them and the violations the physicians allegedly committed). Return to text.

[187] See id., at 1-24; Judd, supra note 83, at A1; Alan Judd, Disciplining Doctors: Secrecy Shrouds Doctor's Case, LAKELAND LEDGER, July 7, 1997, at A1; Judd, supra note 93, at B1. Return to text.

[188] FLORIDA HEALTH CARE REPORT, supra note 42, at 165. Return to text.

[189] See id. Return to text.

[190] See State v. Pinzon Reyes, No. CF 96-00666A-XX, (Fla. 10th Cir. Ct. 1997) (disposition memorandum). Return to text.

[191] See Paulo Lima, Doctor Wins Back License, TAMPA TRIB., Dec. 7, 1997, at 1. The Board found Dr. Pinzon-Reyes guilty of records violations and voted to suspend his license for two years with credit for time served and a "stay" for the remaining 10 months of the suspension. He was permitted to see patients again as soon as the Board's decision was officially filed. Dr. Pinzon-Reyes was also required to perform 100 hours of community service. Return to text.

[192] See Sharrott, supra note 8, at 94-95. Return to text.

[193] See MASS. GEN. LAWS. ch. 111, § § 111, 204 (1995); see also Miller, supra note 7, at 131. The Board of Registration in Medicine was allowed access to hospital disciplinary actions for use in the Board's own proceedings against physicians. The current law deems final disciplinary proceedings against physicians to be public record. See MASS. GEN. LAWS ch. 112, § 5(d) (1997). Return to text.

[194] See id. Return to text.

[195] See Miller, supra note 7, at 131. Return to text.

[196] See id. Return to text.

[197] See id. Hospitals are required by statute to report any adverse decisions to the NPDB. During the first three and one-quarter years of NPDB operation, only 25% of the nation's hospitals made reports to the Data Bank. Return to text.

[198] See id. at 131-32. Return to text.

[199] See MASS. GEN. LAWS ch. 112, § 5(a) (1997). Return to text.

[200] See Miller, supra note 7, at 126. Return to text.

[201] See supra Part V.B.. Return to text.

[202] Miller, supra note 7, at 134. Return to text.

[203] See id. Return to text.

[204] See id. Return to text.

[205] See id. Return to text.

[206] See id. at 135. Return to text.

[207] See N.Y. PUB. HEALTH LAW § 2804-b (c)(i) (McKinney 1997); see also Miller, supra note 7, at 134. Return to text.

[208] See 18 PA. CONS. STAT. § 3214 (a)-(i) (1997); see also Miller, supra note 7, at 134. Return to text.

[209] Miller, supra note 7, at 135. Return to text.

[210] See State Increases Access, supra note 2. Return to text.

[211] Massachusetts and Arizona currently provide Internet access. See Massachusetts Board of Registration in Medicine (visited Apr. 2, 1998) home.htm>; Arizona State Board of Medical Examiners (visited Apr. 2, 1998) docboard.org/az/df/azsearch.htm>. Florida temporarily had a site, and the Brown-Waite legislation calls for a permanent one by 1999. Return to text.

[212] See State Increases Access, supra note 2. Return to text.

[213] See id. Return to text.

[214] For example, Florida's Report on Physician Discipline and Malpractice is a 194- page publication available for $10 via mail. Return to text.

[215] See Fla. S. Comm. on Health Care, SB 948 (1997) Staff Analysis (Mar. 18, 1997) (on file with comm.). Return to text.

[216] See id. at 13. These expenses are calculated for fiscal years 1997-98 and 1998-99. Return to text.

[217] See id. at 14. Expenses for fiscal year 1997-98 are broken down as follows: non-recurring costs of $465,198, salaries and benefits of $2,500,422 for 89 full-time employees, and expenses of $2,654,080. The 1998-99 expenses are anticipated as follows: salaries and benefits of $3,333,896, and expenses of $3,538,773. Return to text.

[218] See id. The "fiscal impact" for 1997-99 consists of $754,826 in costs for data verification, $489,173 in costs for data entry, $436,397 in expenses (including project analysts) to make the profiles accessible via the Internet. Data verification will require 17 OPS staff positions and five and one-half full-time staff positions. Data entry will require 32 OPS staff positions and two full-time positions. Return to text.