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PHYSICIAN PROFILES: CONSUMER PROTECTION OR EXCESSIVE EXPOSURE?

ANN STEWART[*]

Copyright © 1998 Florida State University Law Review

I. INTRODUCTION
II. THE INFORMED CONSENT RUBRIC
A. The Autonomy Justification
B. Autonomy and Economics
C. Physician Privacy v. Patient Autonomy: The Delicate Balance
D. Disclosure—The Nonfinancial Costs
E. Procedure Specific Data Disclosure
F. Fiduciary Obligations
III. ACCOUNTABILITY DOCTRINES
IV. MASSACHUSETTS PRACTICES
A. Factual Practitioner Data
B. Medical Malpractice Claims History
1. The Bovjberg and Petronis Study
C. Licensing Board and Hospital Disciplinary Actions
1. Regulation and the National Practitioner Data Bank
2. The Florida Example
3. Hospital Discipline—Disclosure as a Cure All?
D. Criminal Convictions
E. What Is Not in the Massachusetts Profiles and Why
V. WHAT DOES LEGISLATION LIKE THIS COST?
VI. CONCLUSION

I. INTRODUCTION

The medical profession has segregated society into disparate groups including physicians, non-physician providers, health insurers, malpractice liability insurers, regulatory boards, attorneys, and patient-consumers. Each plays a distinct role, yet all are expected to assimilate into a manageable, profitable, and productive health care system. However, today's society seems unwilling to continue to accept the notion that doctor knows best, and that the patient is subordinate to the provider.[1] Consumers are demanding more information about physicians,[2] expansion of their legally protected rights,[3] and greater involvement in their own health care decisions.[4]

With Massachusetts leading the way, several state legislatures are responding to consumer dissatisfaction by enacting bills aimed at increasing consumer access to physician-specific information in profile format.[5] Certainly, accurate information in comprehensible form would facilitate consumer comparison of physicians and allow patients to better assess treatment options. The weakness with much of the proposed, or even enacted, legislation is the erroneous impression that the data disclosed will adequately inform a consumer about a given physician. Misleading information is worse than no information.[6] In noble efforts to make physician data more consumer-friendly, several state legislatures have taken significant liberties with previously compiled physician information already in the public record by selectively publishing the information in formats that are not comprehensive.[7]

Accountability, informed consent, fiduciary duty, and basic supply and demand theory have been cited by various consumer advocates as reasons for the swell of disclosure-oriented legislation.[8] This Comment begins by exploring the interrelationship of provider-specific disclosure and these doctrines. Part II focuses on informed consent and patient autonomy, harm to the consumer by the disclosure of inaccurate or incomprehensive information, procedure specific data disclosure, and fiduciary obligations. Part III discusses holding physician's accountable through the complexities of government disclosure of provider-specific information. Part IV explores the risks and benefits associated with the disclosure requirement in Massachusetts. Studies and laws from other states, in particular Florida, are used in analyzing the Massachusetts law. Part V reveals the anticipated cost of the disclosure legislation enacted in Florida. Finally, this Comment concludes that consumers have a valid interest in being fully informed about those treating them, but that current disclosure schemes are inadequate to inform consumers because of the legal and medical complexities involved.

II. THE INFORMED CONSENT RUBRIC

The medical field follows a doctrine unique in its existence, but hardly unique in its purpose. The doctrine of informed consent provides that valid patient-consumer consent to medical treatment requires that the patient-consumer be informed of all material information related to such care.[9] Traditionally, this has meant that health care providers must disclose the potential risks, benefits, side effects, details of treatment, and anticipated results involved with a particular treatment.[10]

Some commentators argue that informed consent should extend beyond a doctor's mandatory disclosure of treatment information to include disclosure of provider-specific data.[11] Precisely what type of provider-specific data should be disclosed to patients to enhance informed consent is a tricky question. Some commentators argue for the release of outcome data,[12] while others believe that a patient is entitled to personal information about their doctor.[13] Advances in computer and communication technology further encourage the release of and increased access to various types of data on physicians and treatments.[14]

This section explores the relationship between informed consent, the recent trend toward the disclosure of provider-specific data, and potential problems that may arise. For example, patient autonomy, while potentially increased by disclosure, could easily be jeopardized if public disclosure is deemed to satisfy consent requirements. The burden would then be shifted away from the physician historically charged with providing information, and onto the patient to seek data that is in the public record. Moreover, a physician's privacy rights could be compromised if consumer advocates succeed in their efforts to know all, no matter how unrelated the information may be to the administration of health care. All of these potential problems stem from the erroneous premise that the more a consumer knows, the more valid consent to treatment will be.[15]

A. The Autonomy Justification

Patient autonomy is the cornerstone of informed consent.[16] The basic premise is that patients lack the specific medical knowledge necessary to assess treatment options. To alleviate the knowledge disparity between the patient and physician, the patient should receive all pertinent information to ensure that the choice to undergo the contemplated medical treatment is one the patient would make if all potential outcomes were known.[17] Unlike other services or products for which a consumer can exercise informed, independent judgment when deciding whether to make the purchase or not, the "purchase" of medical services is one frequently made on blind faith in the provider chosen. Patient ignorance of the qualifications of those providing medical care undermines personal autonomy by exacerbating the imbalance of power between the physician and the patient.[18] Thus, any decision to pursue medical treatment or therapy is uninformed to the extent that the patient does not know personal information which could affect a physician's ability to perform the medical services contemplated. In this scenario, alcohol or substance abuse problems, criminal convictions, and prior malpractice claims or prior bad outcomes not resulting in any legal action would theoretically be useful information for a patient considering medical treatment. The flaw in weighing heavily this type of information is that it can be misinterpreted or misunderstood in many of the forms in which it is currently available.[19] The translation of reality into print can often fall short in terms of accuracy and usefulness.

Those who advocate for the release of personal provider information as a means of ensuring patient-consumer autonomy cite increased provider competition and the radical changes in the health care system resulting from managed care as a justification for arming the patient-consumer with enhanced physician data.[20] No longer is it deemed sufficient for a patient to be told solely about the treatment. The individual administering the treatment is also an indispensable variable in the risk-benefit analysis.[21]

B. Autonomy and Economics

Supply and demand theory suggests that providing specific information could increase competition among providers, thereby increasing consumer choice and eventually raising the standards for health care providers.[22] The key to the competition justification, however, is that the patient-consumer must have the ability to shop for a provider.[23] In reality, managed health care alters the delivery of health care to such an extent that the patient is not the one who "shops" for a provider; the real health care consumer is often the insurer who creates a health care package that the patient ultimately purchases.[24] Problematically, choices among insurers are decreasing as employers limit the insurance available to their employees.[25] Thus, because the patient falls out of the provider-consumer loop, insurance companies are the entities that must evaluate the providers with whom they contract.[26]

Presuming, however, that a patient-consumer participates in a health plan where some provider choice remains, two variables affect competition in any market—price and quality.[27] Consumers typically buy the product or utilize the service when price and quality fall within a certain agreeable range.[28] In the typical fee-for-service health care regime, those who can pay the most receive the best care, and those who cannot pay as much frequently sacrifice quality. As managed care becomes more and more prevalent, the gap in available care will likely narrow, and patient-consumers will likely worry less about how much a provider's services cost because they will receive services as long as they pay their insurers' monthly premiums.[29] Insurers will bear the burden of contracting with the best physicians, and physicians will be compromised by the need to contract with insurers to maintain patient pools.[30]

The patients' ability to assess the quality of the physicians that contract with their insurers, however, will continue.[31] As a result, any deficiency in the provider information will impair a patient's ability to make an informed choice about the physicians available within any given health plan.[32] But if the supply and demand theory is a real component in the evolving health care delivery system, as some analysts believe, insurer competition and physician competition should weed out physicians that consumers presumably do not want, and the remaining "stable" of physicians should all be desirable providers.[33] Thus, the appreciable difference among providers should diminish, and the value of provider-specific data should also decline.

C. Physician Privacy v. Patient Autonomy: The Delicate Balance

In opposition to the patient-consumer interest in personal provider information is the privacy interest of the physician.[34] The very fact that individual profiles of all physicians licensed in the United States are maintained by the federal government, but have not been accessible to the public at large for the past decade, suggests that valid reasons exist for controlling the amount and form of information the public receives about providers.[35] Much of the information that is becoming available as the result of state legislation[36] is already public information available to curious patients.[37] However, the information that is available may be difficult for the lay person to discover[38] and thus some consumer advocates believe government compilation is not only beneficial but also necessary for enhancing the regulation of the medical profession.[39] A problem arises, however, when information is summarized or reduced to statistics; brevity then gives way to accuracy.

For example, in the April 1997 Florida Report on Physician Discipline and Malpractice, the Agency for Health Care Administration disclosed select information about closed medical malpractice claims.[40] Though the preface for the information, in chart form, explains that a malpractice suit or payment of a malpractice claim "does not necessarily mean a doctor is unsafe,"[41] the chart categorizes injuries into nine levels of severity.[42] The chart also designates the point in the legal process at which the claim was resolved.[43] Though a useful means of summarizing the information, the explanation of the designations chosen is less than exact. For instance, under the explanation of the "stage legal" classifications, the Florida Health Care Report reads:

<BLOCKQUOTE>STAGE LEGAL[:] Indicates at what point in the legal process the claim was resolved. Most medical malpractice claims settle before going to trial. If a claim is settled for nuisance value, this is probably more likely to happen early in the process, since this is when the insurer can save the most money in defense costs. Of course some significant cases settle early when the malpractice liability is very clear and the defendant and the insurer have little likelihood of successfully defending the suit. The later in the legal process the claim is settled, the more likely that the issues of fact or the law were closely contested.[44] One can only guess what the average reader could draw from this explanation. An individual with a good grasp of the legal system or the insurance industry may understand that the point at which a case settles or closes may have little, if any, correlation to the merits of the case—especially in a state like Florida where medical malpractice insurers can settle claims without the consent of their clients.[45] A lay person may assume that the earlier the resolution, the worse the case must have been.[46] An astute reader of the Florida Health Care Report may, however, recognize that the stage level may be a useful indicator of how particular insurers handle claims, but not at all informative as to the potential level of care available.[47]

One school of thought takes the position that the mere existence of malpractice claims is a valuable indication of the quality of the doctor-patient relationship, and thus his ability to care for patients.[48] The correlation of prior claims with subsequent claims and changes in care has been the focus of several empirical studies.[49] Studies focusing on Florida physicians indicate "that even a single malpractice claim has predictive value as a harbinger of subsequent claims"[50] and thus would more fully inform the patient-consumer seeking a physician for future treatment. The researchers performing the Florida study concluded that previous claims, regardless of whether they resulted in a payment or not, were indicative of physicians with troubled relationships with their patients.[51] If these studies are accurate in assessing the value of knowing prior claims, the question remains how much a consumer needs to know about the claim. It would appear that consumers would benefit from simply knowing of a previously filed case against a physician if prior claims are true indicators that a particular physician has poor interpersonal communication skills that affect quality of care.[52] However, simply revealing that a physician has had a claim filed against him or her does not mean that the claim was meritorious or that there was any malpractice.

D. Disclosure—The Nonfinancial Costs

Disclosure of prior claims is accompanied by significant costs such as unjust harm to the physician's reputation and consumer misreliance.[53] Inaccurate or complex data does not enhance consent, it merely muddies the waters of consumer choice. For example, the consumer who receives data revealing a prior malpractice claim filed against a given physician could accept that information as indicative of a low-quality provider. If, however, the claim never progressed past filing because it had no merit, the information could easily tarnish the physician's reputation. The consumer could be harmed in this scenario by possibly disregarding a provider who may be the best in the field, thereby compromising the quality of the treatment received, or by choosing another provider who is incompetent but has escaped claims for whatever reason. Though some commentators strongly disagree that harm to a physician's reputation and consumer misreliance are justifiable reasons for stifling provider-specific data,[54] it is essential to recognize that informed consent is only facilitated by the compilation and disclosure of accurate and comprehensive information.[55]

E. Procedure Specific Data Disclosure

Another dimension of the informed consent issues associated with physician-specific information is the disclosure of procedure-specific data. Those who encourage access to such information claim procedure- or treatment-specific data will allow patients to assess the quality of care of a given physician (or even a facility) and also allow a consumer to determine whether a physician has sufficient experience with a specific treatment.[56] For instance, in the early 1990s the New York State Department of Health published a unique ranking of New York physicians based on open-heart-surgery-related mortality rates.[57] The rankings were reportedly risk-adjusted to more adequately rank the surgeons.[58] By reporting the number of surgeries performed, and the corresponding mortality rate, a patient-consumer could determine whether a particular physician performed a sufficient number of procedures with acceptable outcomes.[59]

The accuracy of such risk-adjusted statistics poses the most significant concern. The baseline problem with the medical profession, as well as the legal profession, is that the variables that must be calculated when providing treatment are infinite—as are the outcomes. If physicians face the possibility of being published and compared in rankings whenever they accept patients, there is a real risk that the rankings will result in greater defensive medicine and a decrease in the number of physicians willing to pioneer new techniques or to accept high-risk patients.[60] Outcome-specific provider data will only enhance informed consent if those who have the information are able to rely on the data to make better choices. If the data fails to accurately account for severity and risk, or is statistically skewed, the rankings may misrepresent that one physician is "better" than another. The value of the data to the consumer would then be outweighed by the physician's privacy interests and the community's interest in preserving the health care options available.

F. Fiduciary Obligations

The degree to which a physician has a legal obligation to disclose information has been addressed by various courts across the nation. In Moore v. Regents of the University of California,[61] the California Supreme Court treated a physician's failure to adequately disclose information as a breach of fiduciary duty, giving rise to the patient's legal right to receive at least some personal information about his treating physician.[62] One year later, in Hidding v. Williams,[63] a Louisiana appellate court expanded that state's Uniform Consent Statute[64] to include liability when a physician failed to disclose his chronic alcoholism.[65] The unifying theme in these decisions is that the physician has a fiduciary duty to reveal anything that could affect a patient's decision about treatment. Though Moore and Hidding deal with the disclosure of information about conditions that may severely affect the judgment of the treating physicians, requiring a more extensive, "blanketing" form of disclosure as a legal duty has inherent flaws. The fact that the standard for informed consent varies from state to state demonstrates the most essential problem—there is no clear consensus. Who should decide what information will truly increase patient autonomy, and what information will infringe on a physician's privacy rights (or possibly hindering much needed treatment for the patient) remains highly debatable.

In Moore, the patient received treatment for hairy-cell leukemia.[66] The bodily fluids that were removed from the patient's body during the course of his treatment had significant financial value as research material and ultimately as a cell-line created from the patient's T-lymphocytes.[67] The court concluded that the patient had a legally protected interest in being informed about his treatment which the physician violated by failing to disclose the "extent of his research and economic interests in Moore's cells before obtaining consent to the medical procedures by which the cells were extracted."[68] After finding that informed consent extended beyond the disclosure of medical risks to include the failure to reveal a personal interest in the outcome, the court continued, "'The scope of the physician's communication to the patient must be measured by the patient's need, and that need is whatever information is material to the decision.'"[69] The rationale of the court focused on a patient's right to be free of concerns that a physician's judgment or skill could be clouded by economic interests or incentives.[70] Thus, the standard for disclosure in California requires a physician to disclose any health-related or extraneous interests that a reasonable patient would want to know prior to consenting to treatment.[71]

If a physician truly has a fiduciary duty to reveal all information that may be material to the patient, the current swell of disclosure legislation and the accompanying expenditures necessary to implement such programs raise additional questions. The first is whether states must necessarily become involved if physicians already have a duty to disclose.[72] Second, if state agencies compile and publish information, does that constitute notice sufficient to relieve a physician of the duty to disclose?[73] If so, a real possibility exists that patients will be even less informed because not everyone will access the public information available.

A comparison of the Hidding case and legislation recently enacted in Florida provides a good example of this conundrum.[7]4 In Hidding, a patient brought a malpractice action alleging that the physician failed to completely explain the risk of loss entailed in "loss of function of body organs."[75] The court stated that the law of Louisiana required a physician "to advise a patient of any material consequence that would influence the decision of a reasonable person in the patient's condition."[76] The physician failed to disclose his chronic alcohol abuse, which the court determined vitiated the consent given by the patient "[b]ecause this condition create[d] a material risk associated with the surgeon's ability to perform, which if disclosed would have obliged the patient to have elected another course of treatment."[77] Subsequently, the Louisiana State Board of Medical Examiners suspended the physician's license for reasons related to his alcoholism.[78]

In 1997 Florida Senator Ginny Brown-Waite[79] introduced legislation to make information regarding physicians more accessible to health care consumers in a profile form by 1999.[80] The Brown-Waite Act does not require a physician, like the physician in Hidding, to reveal his or her alcoholism unless a criminal conviction or a disciplinary action related to the addiction had occurred.[81] The question is whether the legislation's exclusion of alcohol or drug dependency reflects on the materiality of that information. If the Legislature excluded the information because it is not considered valuable in a consumer's assessment of a potential physician, then is it logical for a court to impose a duty upon the physician to reveal such an addiction in the scope of informed consent? The omission of information relating to substance abuse or other character traits that have the potential to affect a physician's judgment may give those reading the physician profile a false sense of security. On the other hand, absent any criminal or disciplinary history, no foundation exists for concluding that such abuses are necessarily a threat to patients.

If informed consent is the justification for publishing physician profiles, the lines distinguishing a physician's fiduciary-like obligations to disclose material information, and the extent to which publication is sufficient notice for consent, need to be clarified. If a physician already has a legal duty to disclose, the investment of additional time and resources to compile already public information into a more manageable format for consumers may be a poor appropriation of public funds—the proverbial fleecing of taxpayers.

III. ACCOUNTABILITY DOCTRINES

Informed consent is a legal mechanism that regulates physician behavior and makes doctors more accountable. Civil litigation, however, is not the only method for enforcing standards of care and ensuring that physicians abide by the social rules and scientific boundaries recognized by the general populous and the medical community. Any consumer can initiate a complaint against a physician, commencing an investigatory process into the alleged deviant behavior by filing a complaint with the Agency for Health Care Administration.[82] At times this may be the most effective means of holding physicians accountable; however, one recent evaluation of the complaint process in Florida suggests that professional paternalism in the peer review process, combined with the internal administration of professional discipline, disadvantages the consumer who is forced to rely upon state agencies and boards to hold physicians accountable.[83] Thus, holding physicians accountable through means other than civil litigation may be achieved through increasing consumer access to physician information.

Some in the medical community believe that as managed care plans flood the health care scene, the present standard for accountability will be significantly altered.[84] For example, some believe that the professional model,[85] in which physicians self-regulate through their professional organizations and review boards, will be usurped by a model in which medical care is considered a commodity and patients are the consumers.[86] Viable alternatives to the professional model of accountability are the economic model[87] and the political model.[88] Accurate physician profiles are most effective in the economic model; consumers can then express their discontent by changing providers as a means of optimizing cost and quality.[89] In the political model, accountability is accomplished by consumer "voice votes" in public forums.[90] As medicine becomes more of a market good, physician profiles could become the equivalent of nutritional labels for doctors.[91]

Accountability as a justification for the publication of provider-specific information emphasizes an aspect of disclosure that both correlates with and contradicts the informed consent rationale. The two doctrines correlate to the extent that making information available to the public makes physician conduct and character more visible. However, publication as a means of increasing the accountability of providers, as well as managed care plans, relies on the patient-consumer actively seeking information and then processing and relying on that data to make choices about providers and plans. Only if the patient-consumer uses the data to choose the providers that deliver the best quality of care for the best price, will providers then become accountable for the conduct that may be reflected in a physician profile.

For example, in the traditional model—the professional model—of accountability, physicians go about their business and, for the most part, only have to answer to their peers or a discontented patient that files a claim in court.[92] As recent exposés on peer review boards suggest, consumers are increasingly skeptical of intra-professional standards for accountability.[93] Presently, a lay perception exists that peer review is shrouded in secrecy[94] which enables the physicians to escape accountability at a cost to the consumer who must rely on the profession to regulate itself.[95]

Contrasting with the professional model is the economic model. In the economic model, consumers are purchasers who use physician profiles to comparison shop for providers. Relying on basic supply and demand theory, the physicians with the most desirable cost and quality will be chosen most often by consumers. Those that are selected less will be forced to either clean up their acts, if the profiles reveal criminal or disciplinary problems, or attempt to increase their quality of care, if malpractice claims are the reason they are slighted by the health care consumer.

Theoretically, all health care providers could become more accountable in terms of training and continuing involvement in health care advancements if health care consumers rely on and shop based upon the data regarding education and publication.[96] For instance, knowledge that a particular physician was foreign-educated rather than educated in the United States or educated in the specific state in which the patient seeks a provider could affect a patient's confidence in the type or quality of care that the physician provides. Physicians may feel the pressure to obtain the most prestigious education or to become more involved in research and publications if it becomes evident that this type of information has an impact on physician choice.

While increased emphasis on educational pursuits and continuing contribution to medical developments could increase accountability, this pressure could compromise commitment to actual practice, thereby reducing quality of care and constricting the pool of accessible providers. In terms of accountability, this is a negative consequence of increased disclosure if consumers inaccurately equate certain education or research contributions with the quality of care available from a given provider.

The linchpin to increased accountability resulting from physician profiles is the accuracy and understanding of the information.[97] Undoubtedly, some of the biographical data proposed in legislation such as Florida's Brown-Waite Act speaks for itself.[98] Disciplinary action[99] and information relating to liability actions or criminal convictions could easily fall prey to misinterpretation. Profiles as accountability tools will backfire if the information provided is not carefully presented to the consumers.

Much of the data contained in the existing and proposed profiles is already public information that can be attained through consumer research. While such research may be tedious and challenging for the average consumer, it is least likely to be misinterpreted in its original context. For instance, court files can be viewed by anyone requesting access, and transcriptions of disciplinary hearings are available upon request.[100] Consumers have the opportunity to read the facts and decide for themselves whether the physician is one from whom they wish to seek care. At a minimum, profiles that do abbreviate practitioner data on claims, discipline, and convictions should provide links and references to sources of more detailed information.

IV. MASSACHUSETTS PRACTICES

As of November 1996, consumers can retrieve the profiles of up to ten Massachusetts physicians per call on a toll-free phone line.[101] The impetus of the Massachusetts data bank was a 1994 media revelation of reported "extreme physician negligence and malfeasance"[102] that had been handled too leniently by the hospitals and licensing authorities charged with regulating the medical profession. Responding to public skepticism that physician self-regulation results in patient-consumer concerns yielding to physician interests, the Massachusetts Secretary of Consumer Affairs appointed an Advisory Committee on Public Disclosure of Physician Information.[103]

The Committee's inquiry had two premises: first, that all reliable information in the Board of Registration in Medicine's possession helpful to the public in choosing doctors should be released, unless a compelling public policy reason exists for keeping it confidential; and second, that "[j]udgments and other dispositions regarding a physician's competency which result from adversarial or due process proceedings, provide reasonably reliable information."[104] The Committee concluded that four types of information should be compiled in a consumer-comprehensible format and made easily accessible: factual practitioner data, medical malpractice claims history, licensing board and hospital disciplinary actions, and criminal convictions.[105] The means of dissemination included the above-noted toll-free request line,[106] posting the information on the Internet[107] and publication on CD-ROM to be maintained in public libraries.[108]

The bill initially proposed in the Massachusetts legislature called for the release of "'raw outcomes data,' including all complaints no matter how resolved."[109] After passing through both houses, the Governor vetoed the bill.[110] Although its initial response was adamant opposition to the release of provider data,[111] the Legislature's ease in passing the early version of the profile bill, the strength of the consumer skepticism of the medical profession, led to the medical community tempering its opposition and sponsoring its own compromise bill.[112] This compromise bill was enacted into law.[113]

A. Factual Practitioner Data

The first category of information contained in the profiles is biographical data that a physician can supplement with information on "publications, awards and other honors, training and specialty certification and length of practice."[114] The education and medical training information consists of "basic 'positive' factual information about physician competency."[115] The Committee recognized that physicians often display diplomas and specialty and training certificates; however, limited consumer access to such information does not facilitate easy comparison.[116] As a means of enhancing patient autonomy, the Committee recommended that the profiles create a uniform presentation of such data so consumers can shop for physicians that have the background they find desirable.[117] The other categories of information, especially the method of presentation, spawned greater concern and apprehension in the medical community.[118]

B. Medical Malpractice Claims History

The original bill included all complaints no matter how resolved.[119] The obvious problem with this proposal is that a filed claim definitively indicates little more than the fact that a patient, dissatisfied for whatever reason,[120] was able to find a willing attorney to initiate litigation.[121] Recent studies on the effects of prior claims on quality of care and malpractice suggest that the mere fact that a plaintiff files a claim may be indicative of a poor physician-patient relationship.[122] As such, there may be some consumer value in knowing whether prior claims were initiated against a particular provider.[123] However, this value should be carefully balanced against the harm that such vague reporting of claims could do to the professional reputation of the physician.[124] This concern may be evidenced by the fact that the Massachusetts law reveals malpractice payments classified in general categories of above average, average, and below average without disclosing the actual amounts paid.[125] An accompanying disclaimer warns consumers that settlements may be unrelated to the issue of professional competence.[126] The profile also provides statistical data for physicians in the particular field allowing for a comparison between a given physician and the percentage of those in the same field who have also paid claims.[127]

Though restricting the profile data to paid claims history is a vast improvement on the original profile proposal, there are some inherent problems that remain unresolved by the categorization provided for in the final bill. For example, replacing dollar amounts with broad classifications fails to adequately represent the cause of a claim. Consider two physicians with vastly different insurance policy limits, doctor one at $1 million and doctor two at $200,000. Doctor one has a nuisance claim that his insurance company is willing to settle for $200,000 because the complexity of the claim would result in litigation costs well in excess of that amount. Plaintiff one accepts the settlement offer. Doctor two has a claim with clear negligence, but he is only one of several defendants, and his insurance company offers to settle for the amount of the policy limit early to avoid incurring the expense of litigation. Plaintiff two accepts, knowing that the other defendants have some liability as well. Both doctors pay the same amount; the question is, how they will be classified? They could both fall into the same category because the amount paid was the same. They may fall in different categories because the payment in proportion to the amount of insurance coverage was vastly different (25% as opposed to 100%). They may also fall into different categories because the classification is based on the average amounts paid for certain types of injuries or by certain types of physicians. With so many possible grounds for determining whether a payment is considered "average," it is unlikely that such categorization will provide accurate or truly informative data for consumers. The complexity of medical malpractice—from the physician-insurer relationship[128] to the actual legal issues—are barely comprehensible to the physicians themselves, not to mention the general consumer who would be using naked claims data to make provider choices.

One powerful argument in support of classified disclosure of the medical malpractice claims can be found in the results of several studies that reveal only one tenth of medical negligence results in any claim at all.[129] At least one well-known study, analyzing Florida practices,[130] found a significant correlation between past claims and the likelihood of future claims.[131]

1. The Bovjberg and Petronis Study

The Bovjberg and Petronis study analyzed the effect of negative claim history on future decisions by physicians,[132] the likelihood of disciplinary action against physicians with bad claims,[133] and the relationship between claims and the actual quality of care given by physicians with negative claim history.[134] The data sources for the study were the Florida Medical Professional Liability Insurance Claims file[135] and the American Medical Association's Physician Masterfile.[136] The researchers made several conclusions with implications concerning the accuracy and usefulness of prior claims history, some of which would support the profiles[137] and some of which reveal the potential flaws of such disclosure.[138]

As an initial matter, the researchers noted that malpractice claims on the whole are "relatively rare in the life of a physician, even in Florida, a very litigious state."[139] Of the 8247 physicians included in the study 59.2% faced non-consequential claims (that is, where the claimant never made a demand for payment or the insurer never expended funds for investigation or litigation) during the nine-year focus period for the study.[140] Of the remaining physicians, 13.4% had a single paid claim,[141] 7.2% had multiple paid claims, and 20.2% faced no claims at all.[142] Physicians facing no claims, as opposed to non-consequential claims, declined during the study period causing the researchers to speculate that either incident reporting increased in accuracy or patients became more litigious.[143] The litigiousness conclusion was cited as the best explanation for another finding—a rise in the number of claims per physician, per year.[144]

Though Massachusetts aborted its initial plan to disclose all claims filed,[145] this data is instructive as to the misrepresentation caused by such disclosure. If the physicians in the Bovjberg and Petronis study were subject to the disclosure standards first issued in Massachusetts, only 20.2% of the physicians would have escaped publication of a claims history despite the fact that 79.4% of the physicians faced only non-consequential claims, or faced no claims at all.[146] Even if the mere filing of a claim has some consumer value, it seems difficult to justify tarnishing a physician's professional reputation by disclosing claims that never involved demands or expenditure of funds by the physician's insurer.

The study also concluded that there is predictive power in malpractice claims.[147] Regardless of size or frequency of prior claims, "having any baseline claims at all puts a physician at substantially higher risk of having subsequent claims of all categories."[148] This should not, however, alter the above conclusion that disclosure of non-consequential claims is more harmful than helpful to the general consumer. Non-consequential claims are not reliable indicators of poor quality of care or poor physician-patient relationships.[149] In fact, non-consequential claims, if they have any informative value, are only indicative of the increasing litigiousness of patients.[150] Though some advocates steadfastly believe any information is better than no information,[151] the medical field is one of such complexity that states should proceed cautiously in allowing consumers to place value on claims that neither the courts, nor insurers, would give credence.

The third segment of the study focused on the usefulness of prior claims given the determined predictive power of claim history.[152] Interestingly, this analysis never mentions the potential use of such information by patient-consumers. Rather, the study emphasized the potential use for insurers and as a means for "quality monitoring"[153] by peer review boards. There are two plausible explanations for excluding consumer interests. The first is the timing of the study. The Bovjberg and Petronis results were published in 1994, two years prior to the onslaught of consumer-driven legislation to publish such information. Second, the questions that seemed to be the impetus for the study itself stemmed from the value of the National Practitioner Data Bank,[154] a source unavailable to the public at large, as a gauge for medical quality and future problems.[155]

Bovjberg and Petronis concluded that claims history is a useful tool for medical malpractice insurers as a means for experience rating potential insureds and as a basis for determining insurability.[156] This is not a problematic conclusion in terms of physician profiles because the issues involved in disclosing to an insurer that will ultimately provide coverage are vastly different than the issues involved in disclosing to a consumer who has little concept of the triangular relationship between physicians, their insurers, and patients-consumers. The researchers ultimately concluded that:

this analysis does not address the dollar cost of reporting compliance, nor does it seek to look behind the bald fact of claims outcomes to any estimate of true merit. Claims history is not a measure of technical medical competence and is certainly no measure of the value of a physician to society. However, it does indicate a measurable cost—the fiscal and emotional costs of resolving the malpractice claim. The predictive information inherent in claims, even small claims, could be used to reduce these costs.[157]
The conclusions about the use of claims history to regulate the medical profession are more directly related to the issues, especially the accountability issues, raised by provider-specific data disclosure legislation.[158] As suggested above, prior claims predict health-care-related costs which, as with all products, will eventually be passed on to the health care consumer.[159] Publication, however, is not the best means for reducing or eliminating these costs. Better regulation within the profession and changes in the legal approach to malpractice claims would be more effective, as they would treat the problem at the source.

C. Licensing Board and Hospital Disciplinary Actions

The third category of information the Massachusetts Advisory Committee deemed appropriate for profile disclosure is disciplinary actions against physicians.[160] As opposed to the above discussion in which prior malpractice claims histories were analyzed as indicators of potential problems that could eventually lead to medical board action, the types of data disclosed within this category are final decisions that affect a physician's ability to practice. While some believe prior claims can be used to forewarn consumers that a physician may not deliver the quality of care desired,[161] board action would seem to be the most valuable type of information available. After all, disciplinary action is usually administered by a physician's peers,[162] individuals with the specialized knowledge of the practices and procedures within a given field. Malpractice claims, however, involve patients, insurers, lawyers, and jurors who are likely to know nothing about medicine but are nonetheless placed in a position to evaluate a physician's behavior. Certainly, if one believes prior claims history is valuable to the consumer, disciplinary action would be invaluable in physician selection.

As with claims histories, however, the disclosure of licensing board and hospital disciplinary action is wrought with problems. Disclosure of licensing board decisions, which are generally a matter of public record, is not as problematic as is the process by which such discipline is handed down.[163] The public attention in Massachusetts, which spawned the legislative drive to publish information[164] in an effort to make peer reviews more accountable, certainly suggests that, if anything, licensing boards are too lenient.

1. Regulation and the National Practitioner Data Bank

Some background on the National Practitioner Data Bank (NPDB) is helpful in understanding the role of provider data in "quality monitoring" or professional regulation of physicians.[165] The NPDB is the product of the Health Care Quality Improvement Act of 1986 (HCQIA),[166] federal legislation that sought to insulate peer review from legal intrusions.[167] The NPDB was created as a repository for three types of information, one of which was paid malpractice claims. To fulfill the goal of the HCQIA, the data in the NPDB "are only available to bolster peer review and the actions of licensing boards; allowance of discovery in subsequent malpractice cases was eliminated by amendment, and data are not available to the public."[168] HCQIA specifically admonishes peer reviewers accessing the information that malpractice payments should not raise even a presumption that malpractice occurred simply because a claim was filed.[169] If such cautious language is necessary to remind a physician's own peers that claims do not necessarily correlate with a breach of the standard of care or even undesirable quality of care, it would seem that a consumer without the specialized medical and legal knowledge would be less capable of fully appreciating the significance of such a history. Accordingly, the disclaimers aimed at consumers by both Massachusetts[170] and Florida[171] in their public profiles closely parallel the language of the HCQIA.[172]

Another example from Florida helps illustrate problems that may arise with the Massachusetts legislation. One study of Florida obstetricians (Entman study) with malpractice claims histories examined the usefulness of "'bad-apple' monitoring systems such as the NPDB"[173] in identifying physicians at risk for future errors in their medical practice.[174] The Entman study concluded that using such data as a professional monitoring device "may be misjudging the likelihood that substandard clinical care will be provided by physicians with prior claims"[175] and that despite the public interest aims of the NPDB, "this study suggests its data may not reliably identify physicians likely to make errors."[176] The Entman study tested the hypothesis that peer review of current practice can distinguish between physicians based on their prior claims.[177] Using three types of tests, researchers were unable to link prior claims experience with the technical quality of care or current practice of the Florida physicians when reviewers were unaware of the prior history.[178]

2. The Florida Example

It does not take more than one week of practice in a law firm specializing in medical malpractice defense in the state of Florida to recognize the inequity of disciplinary action administered by the state agency charged with regulating the medical profession. The Florida Report on Physician Discipline and Malpractice, published by the Agency for Health Care Administration in April 1997,[179] has four sections: physician discipline,[180] administrative complaints,[181] emergency actions,[182] and closed medical malpractice claims.[183] While it would be hard to argue that accurate information in each of these categories can be anything but helpful in the move toward improving health care, allowing health care consumers to make better choices, and improving the review systems already in place, the fact remains that much of the information available is incomplete and misleading. Sections one through three of the Report disclose disciplinary action in uniform language that describes in legal terms the alleged violation.[184] As the Report admits, however, two physicians found guilty of very different violations may have the same description under the "Terms of Final Order" section of the Report.[185]

If the goal of physician profiles is to adequately inform consumers of their potential physician choices by listing generic charges and resolutions, including instances in which the physician neither admits nor denies the charges, they fail this goal.[186] A nutritional label would be deficient in its purpose if it merely stated "carbohydrates-yes, sugars-yes, caffeine-no." Similarly, a physician profile that merely sketches the charges against a physician may sufficiently deter a consumer but the reality may be that the physician opted to pay a fine or submitted to continuing education rather than undergo further review by the Board.[187]

One particular case found in the emergency actions section poignantly highlights the void of information provided by the summaries used in the Report. The Report lists Dr. Ernesto Pinzon-Reyes as receiving "[e]mergency suspension of license based upon a finding of committing gross malpractice."[188] This action was taken in October 1996.[189] On June 26, 1997, a jury acquitted Dr. Pinzon-Reyes of first-degree murder charges based on the very same set of facts that gave rise to the emergency action.[190] The acquittal did not prevent the Board from proceeding with disciplinary action. In fact, six months after he was acquitted, the Board of Medicine convened and voted 7-6 to allow Dr. Pinzon-Reyes to resume the practice of medicine.[191] In the next edition of the Report, Dr. Pinzon-Reyes will find himself listed in section one, which lists those physicians who have been disciplined by the board.

This excerpt does illustrate what little information is really conveyed in this publication. The point is not that information is bad—the point is that incomplete or misleading information is bad. Consumers are not the only concern; physicians have reputational interests that need to be preserved. If physicians know they will be misrepresented by incomplete data, the possibility exists that doctors who practice in high-risk specialties or who take on high-risk patients will either suffer from the disclosures or will withdraw from those practices.[192] Medicine is a field in which experimentation is sometimes the only option, and new procedures and technologies are necessary for progress.

3. Hospital Discipline—Disclosure as a Cure All?

At the time the Committee was determining what information should be disclosed in physician profiles, a statute in Massachusetts required hospital disciplinary reviews and actions to remain essentially confidential.[193] The law protecting such information was implemented in an effort to insulate reviews and to encourage "full and frank" interaction.[194] The Committee analyzed the effectiveness of the confidentiality law and determined that it had not increased the effectiveness of intra-hospital discipline as expected.[195]

Relying on a 1995 report by the Inspector General of the U.S. Department of Health and Human Services, the Committee determined that a significant discrepancy existed between hospital-levied disciplinary action and state licensing board action.[196] Nationwide, only one out of every eight actions taken by a state board also resulted in hospital discipline that was reported to the NPDB.[197] The Committee decided the confidentiality of hospital actions failed to stimulate better peer review within the hospital setting, and thus patients should have access to information regarding hospital sanctions.[198]

D. Criminal Convictions

The final category of information approved by the Massachusetts Advisory Committee for profile disclosure was convictions for felonies or misdemeanors.[199] Such convictions are already a matter of public record and would seem to stand little chance of misinterpretation. The only anti-disclosure argument that can seriously be proffered for convictions is that certain crimes may not be relevant to medical practice or to a physician's fitness to treat patients. This argument is generally a weak defense because all crimes derogate public order and the law. While publication may be damning, the physician-patient relationship is significantly based on trust.[200] Convicted physicians had their day in court and most likely were convicted by lay persons similarly situated to the consumers that may use physician profiles. Certainly, if a jury analyzed the facts of the crime and found the physician guilty, a consumer may be similarly inclined to doubt the willingness of a provider to stay within the bounds when practicing medicine.

E. What Is Not in the Massachusetts Profiles and Why

Several types of information failed to pass Committee scrutiny, ironically for many of the same reasons articulated above. Malpractice claims[201] and criminal charges prior to final resolution are excluded because the

informational value [they] might carry is far outweighed by considerations of fairness to the accused doctor. Indeed, a patient upset about an unavoidably bad medical result might be irrationally driven to file a malpractice claim, or to press a criminal charge, with no factual justification or realistic hope of success.[202]
The Committee also recognized that claims without final resolution are unreliable indicators of physician quality and character.[203]

Physician confidentiality interests outweighed consumer interests on the issue of substance dependency, as long as the addicted physician participates in a Board of Medicine approved treatment program.[204] The Committee juxtaposed a physician's dependency with any other patient's right to have confidential medical records, and concluded that physicians' rights as patients eclipse consumer protection.[205]

Finally, provider-specific outcome data failed to make the final cut for profile disclosure in Massachusetts,[206] though New York[207] and Pennsylvania[208] found certain outcome data valuable for purposes of consumer evaluation. The Committee's reluctance to undertake development of an outcome database reflected its concern over when the "current outcomes measures convey sufficiently reliable information about the quality of physician performance to warrant recommending their collection by the Board or their release to the public on physician profiles."[209] This laudable concern was, perhaps, not properly considered when the Massachusetts Advisory Committee—as well as the legislatures and agencies of several of the states[210]—contemplated consumer-oriented physician profiles.

V. WHAT DOES LEGISLATION LIKE THIS COST?

Several states have Internet access to physician data.[211] Others operate toll-free phone lines,[212] provide copy and facsimile service for requesting consumers,[213] and generate entire publications[214] of all intrastate data. Providing such information involves the staffing of phone lines, integration of information systems, and extensive clerical and publishing expenses. Compilation and integration of the information, and especially verification, add to the expense of profiles. These are superfluous expenditures to make data that is, for the most part, already public and available somewhere to a patient truly interested in discovering it.

In preparation for the most recent Florida measure to increase consumer access to physician data, the Florida Senate prepared a Staff Analysis and Economic Impact Statement for Senate Bill 948, Physician Profiles.[215] Operation and staff expenses for the toll-free hotline will result in costs of $250,185 per year.[216] The legislation would require AHCA to modify investigatory and referral mechanisms with anticipated costs totaling $5,619,700 for 1997-98 and $6,872,669 for 1998-99 based on 18,000 provider complaints per year.[217] The Department of Health is anticipated to incur total costs to implement the legislation of $1,680,396 for the 1997-99 period.[218]

VI. CONCLUSION

It is said that knowledge is power. Certainly, there are tremendous benefits in knowing more about those who provide health care. Consent can be enhanced and providers can be held more accountable, and hopefully the quality of health can be increased. Disclosing data does not, however, automatically impart on those who read it the ability to properly apply the information to positive ends. Information about malpractice and the discipline of physicians needs to be carefully presented to benefit the consumer without inadvertently damaging the physician. Ranking and scaling the severity of injuries or misconduct fail in this regard. A simple indication that there indeed has been a malpractice claim or disciplinary action, and providing references so that the interested consumer can find thorough information on a given physician, are the best means of informing consumers without causing unnecessary harm.

Health care is a dynamic and rapidly evolving sector of society that receives a tremendous amount of attention. There is a need to enhance the information available; however, the recent disclosure legislation is a leap by lawmakers without an adequate foundation. Better agency regulation and more thorough and consistent professional standards need to be implemented to ensure positive growth in medicine. This is, after all, the information age. The information provided should be the most accurate and comprehensive available, not mere tidbits of data that may lead to greater apprehension and tension among the plethora of health care players.