Doctors rip plan to post malpractice data on Web

Physicians in Ohio and New York state are challenging legislative proposals that would add malpractice settlements to discipline-related data being published on the Internet.

By Bonnie Booth, amednews staff. Feb. 7, 2000.

New York and Ohio physicians are the latest to face the possibility that medical malpractice settlement information -- often shielded from public viewing in sealed court records -- may become available on the Web for patient perusal.

Legislators in both states will be dealing this year with bills that would require medical malpractice history to be included in physician profiles posted by state agencies on the World Wide Web.

And physician organizations in both states are gearing up to fight what they generally agree is a bad idea.

"We are troubled by the legislation, primarily because we are not so sure that malpractice history in isolation is a significant indicator of whether or not a physician is competent," said Timothy Maglione, director of legislation for the Ohio State Medical Society. "[The state] already puts on the Web whether somebody has had any former disciplinary actions. We believe that's adequate consumer protection to make sure consumers are getting the best information they can."

Ohio and New York are the latest in a long line of states wrestling with what information about physicians to make available to patients via the Internet. Since 1996, when Massachusetts became the first state to post broad disciplinary data on the Web, many have seen it as inevitable that long-secret data would begin to see the light of day.

In the three years since Massachusetts took action, at least 10 states have considered some sort of physician profiling legislation annually, according to the National Conference of State Legislatures.

Good doctors can have bad profiles

But physicians continue to strongly resist attempts to push the envelope further.

"We are fundamentally opposed to utilizing raw medical malpractice data and raw hospital disciplinary data without any risk adjustment," said Duane M. Cady, MD, AMA trustee and chair of the Medical Society of the State of New York's Physician Profiling Task Force. "One of the problems is that the best doctors can have the worst claim experiences because they are the ones who take on the most difficult cases."

John A. Bastulli, MD, a Cleveland anesthesiologist, agreed.

"If you practice at a tertiary care trauma center, you may see 90% severely sick or critically ill patients who seek highly specialized care," he said. "Many malpractice cases are the result of bad outcomes that are not related to anything a physician did or didn't do and are dismissed in court. I don't know how the number of times you are sued, how often you settled and how much you paid necessarily equate to quality."

In both Ohio and New York, some information about physicians is already available on the Web, including information on specialty, schooling and licensing and any final disciplinary action taken against them by state agencies. Ohio also informs patients whether the physician has kept current on CME requirements.

Maglione said posting of that information on the Internet was not mandated by Ohio legislators but rather was done at the initiative of the state medical board.

And he said OSMA doesn't believe the posting of additional information about physicians is necessary.

"The question isn't whether or not people should have access to information about their physicians," he said. "We think they should, but it should be useful and relevant information. Raw medical malpractice data are not really a significant indicator of whether or not a doctor is good or bad."

Consumer advocate Jamie Court, author of Making a Killing: HMOs and the Threat to Your Health, said patients should be able to view physician-specific malpractice information and hospital discipline records.

"The public is entitled to the raw data, especially peer-to-peer information," he said. The public has a right to know if there are repeated cases and allegations against a physician. Part of being a member of the medical profession means being accountable to the public, he said.

In New York, legislation requiring the posting of raw medical malpractice and hospital disciplinary data has been passed by the Assembly for the past several years but has never made it through the state's Senate.

Dr. Cady said that could change this year.

"The Senate has been more understanding of our position on releasing raw data," he said. "But the issue has become much more politicized."

Darrin Ocke, associate director of legislative and political affairs for MSSNY, agreed with Dr. Cady's assessment that the battle against posting raw data on the Web is likely to be more heated this time around.

"There are a number of so-called consumer groups that have been agitating for this legislation," he said. "It's gotten recent press attention, which turns up the heat. There are a number of members of the Senate who have taken a harder look at this issue than they've ever taken before."

Unseen result: Less discipline funding?

In both states, medical malpractice and hospital disciplinary data are reported to the state medical board. That board then can take a look at a physician's track record and decide whether disciplinary action is needed.

But Dr. Cady said funding for that activity could be curtailed as an unintended consequence of turning medical malpractice and hospital discipline information into data that actually mean something to patients.

"We met with Massachusetts in 1996 about this issue," he said. "It turns out that much of the money that went into discipline ended up going into getting profiles in shape so they could be posted. As a result, disciplinary actions plummeted."

But, he said, MSSNY will be forced to revisit the issue in light of the pending legislation and the fact that several more states have now dealt with the issue.

California, Connecticut, Idaho, Massachusetts, Rhode Island, Tennessee and Texas now disclose malpractice judgments and arbitration awards to patients, according to information gathered by the National Conference of State Legislatures.