No one likes to see his dirty laundry displayed in public. But thousands of doctors around the country are facing that embarrassing
prospect as more states begin publishing physician profiles—including malpractice payments and disciplinary actions—on public
Web sites. Massachusetts was the first state to post such information in 1997. Since then, others have followed, including
California, Florida, New York, and most recently, New Jersey.
The posting of malpractice data has caused a furor among physicians, who argue that the number and amount of payouts aren't
a fair measure of their competence or the quality of their care. The ramifications of making such lists public became apparent
this year when a New Jersey newspaper sued the state for access to the data before it was posted. The state medical society
tried to block its release, but was turned down by the courts. After the paper won the case, and published a list of doctors
with three or more payments, they predictably went ballistic.
As in many other states, New Jersey law requires insurers to report all malpractice payments to the state medical board. In
1989, the state established a Medical Practitioner Review Panel under the Division of Consumer Affairs. The panel was charged
with compiling and investigating malpractice judgments, settlements, and arbitration awards, and when appropriate, referring
physicians to the state board for possible disciplinary action. If the board took no action, however, the information remained
confidential.
In 2003, the state legislature passed the New Jersey Health Care Consumer Information Act, which requires the Division of
Consumer Affairs (DCA) to create profiles of the state's physicians, including disciplinary actions against them, and payments
for malpractice judgments, settlements, or arbitration awards for the past five years. Unlike similar data in the National
Practitioner Data Bank, however, the new law requires that this information be accessible to the public on the Internet or
by phone or mail.
Last April, the DCA sent letters to the state's doctors notifying them of the impending publication of the profiles, and urging
them to review and update their data (on a secure Web site) and to verify its accuracy.
According to the Medical Society of New Jersey, however, many physicians never received those notices. Nearly 200 contacted
the Society to complain about being unable to access the Web site, or to correct inaccuracies in their profile information.
One reported that his profile showed a malpractice payment that was 10 times the actual amount.
(The DCA invites doctors to notify the agency if they feel the information in their profile is wrong, and wish to contest
it. Until the issue is resolved, the disputed information will be withdrawn, and remain unavailable to the public.)
A newspaper sues for the right to publish the dataThe Record, a major daily newspaper in northern New Jersey, had been gathering material for a story on medical malpractice payments
by the state's physicians, and learned that the DCA's Medical Practitioner Review Panel had been compiling that data for years.
The newspaper filed a request for it under the state's Open Public Records Act. The DCA refused, based in part on confidentiality
provisions in the state law.
The Record sued the DCA in state court to force it to disclose the data. In March 2004, the judge granted the paper's request. She ruled
that since the public health law requires insurers to submit notices of malpractice payments to the MPRP, that information
is part of the public record, and that public interest in the information outweighs physicians' right to confidentiality.
In May 2004, three days before the judge's order to produce the records became effective, the Medical Society of New Jersey
filed a complaint in Federal court on behalf of its members, seeking an injunction to stop the DCA from releasing the data
to The Record, and from posting it on the Internet. The MSNJ argued that disclosure would violate physician privacy rights protected by
the 1986 federal Health Care Quality Improvement Act, and by constitutional protection for confidential settlement contracts.
The Federal court rejected the MSNJ's arguments, pointing out that under existing law, confidential settlements as well as
judgments must already be disclosed to the state medical board, a public agency.
In passing the new law, the state has "a significant and legitimate public purpose," wrote Judge William Bassler. "It is clear
that providing consumers with relevant information about physicians' backgrounds helps consumers to make informed choices
with regard to medical services." If the malpractice data were not released, he noted, "the public would be deprived of information
that could be vital in making an informed decision in one of the most important areas of life: one's health."
Critics of publicizing doctors' malpractice records argue that it's unfair to do so without placing the records in context,
because physicians in certain surgical specialties or who practice in facilities that attract high risk patients are likely
to be sued more often than others. The DCA's list does compare every physician's malpractice record with those of others in
the same specialty, ranking each one as below average, average, or above average for that specialty.
Advocates for the DCA's list point out that each profile includes the following disclaimer: "Settlement of a claim and, in
particular, the dollar amount of the settlement, 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." But critics claim that
most patients who consult the list to check on a doctor will ignore that disclaimer.
Making the public record really public In June, two weeks before the DCA posted the malpractice data on its Web site, The Record published a list of 21 area physicians with three or more malpractice payments in the past five years. When interviewed by
the paper, several of them protested that the information was inaccurate or misleading, or insisted that they had been forced
to settle by their hospitals or insurance carriers.
One ophthalmologist listed with eight payments claimed that those cases had been filed against his surgery center, not him,
and didn't involve his patients. An obstetrician with five payments said that he'd taken responsibility for those cases because
he'd been director of the high-risk perinatal unit at a regional medical center at the time, and that they were settled because
the center didn't want any negative publicity.
Robert Montemurro, an ob/gyn in Wayne, NJ, was listed with three payments totaling $1.2 million. He insisted that he'd provided
appropriate treatment in all three cases, but that his insurer had settled to avoid the risk of trial. "Sometimes you want
to fight these cases to the death," said Montemurro, "but the insurance company won't let you." Now he promises he'll be less
willing to settle.
In its story, The Record reported that of the 2,268 doctors who made malpractice payments over the five-year period, just 227—less than 1 percent
of the state's practicing physicians—were responsible for nearly 40 percent of the $890 million in total payments. As the
paper noted, few of those doctors had been sanctioned by the state medical board.
John Shaffer, a spokesman for the MSNJ, blasted the release of the malpractice data, calling it "sensationalist information
for people who like tabloid reading. It does not provide any useful tools in evaluating a physician's competency or quality."
But then state senator (now acting governor) Richard Codey described the publication of the data as "a step forward for consumers
and for healthcare in New Jersey. Any good doctor has nothing to fear from this."
In an editorial following the article, The Record insisted on the public value of the malpractice data: "If you put your health—or your family's health—in a doctor's hands,
you should be able to find out if he or she has paid any malpractice claims. Some doctors have paid several. That's important
consumer information."
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One doctor fights backWhile it may not be easy to fight city hall, sometimes the battle is worth the effort. That's particularly true if a state
agency's Web site contains inaccurate information about you that could damage your reputation. In the following case, the
physician eventually went to court in order to clear his name—and won.
Dr. A, who prefers anonymity, is a general practitioner in New York City. In 1999, he received a notice from the state health
department's Board for Professional Medical Conduct (BPMC) charging him with "willfully harassing [and] abusing a patient,"
"moral unfitness," "fraudulent practice," "practicing beyond the scope," and failing to maintain proper records. The charges
were based on a complaint by a female patient who claimed that Dr. A had treated her "late one evening" at his office for
a sinus infection and headache. Her complaint alleged that he used acupuncture "without an appropriate certificate or license,
and failed to record his diagnosis or treatment in her chart."
During the treatment, the patient claimed, Dr. A "induced" her to remove her clothing, then massaged her "intimately" and
kissed her. A week or so later, she contacted him again about her sinus problem, and asked for some medication. He then phoned
in a prescription for her as a personal favor, but failed to record it.
At a BPMC hearing in 2000, committee members found the patient's testimony "saturated with inconsistencies and exaggerations,"
some of which "defied logic." After Dr. A testified, they accepted his assertion that the patient's visit to his office that
evening had been of a purely "social nature," and that she had neither requested nor had he actually provided any medical
treatment.
The committee therefore concluded that there were no grounds for a charge of professional misconduct based on that encounter.
They did find, however, that Dr. A's subsequent failure to record the later prescription constituted a "technical violation,"
for which the BPMC issued a formal reprimand. Dr. A did not appeal.
According to its policy on disciplinary actions, the BPMC published the reprimand as well as the original charges against
Dr. A—including those it had rejected as unsubstantiated—on its official Web site, where it was available to the general public.
When he learned that the information had appeared on the BPMC's Web site, Dr. A asked the agency to delete all references
to the charges that weren't sustained. As his lawyer wrote, the "posting of allegations which were never proven is extremely
damaging to his professional and personal reputation." The Bureau refused on the grounds that "all disciplinary orders are
public upon final disposition."
In 2002, Dr. A sued the BPMC, claiming that its publication of the unfounded charges against him violated state law on professional
confidentiality. The Bureau responded that the same law requires it to disseminate all information on disciplinary proceedings,
whether or not it takes action against a physician. The trial judge agreed, and dismissed the suit; Dr. A appealed.
Before the appellate court last year, the BPMC argued that no reasonable person would believe the allegations and charges
against Dr. A since its Web site notice stated that they had been dismissed as unsubstantiated. But the appellate judges noted
that "many people will have continued doubts" as to whether Dr. A actually committed the "serious improprieties with which
he was charged," and that such doubts could "negatively and unjustifiably impact" their decisions to choose him as a physician.
According to the appellate court's analysis, "if a doctor receives a favorable determination in either a criminal action or
a civil action, the information is not available for public review. We therefore find that [the purpose of the state's professional
confidentiality law is] to similarly insulate from public access any information involving a favorable determination in a
medical disciplinary proceeding."
Calling the publication of the charges "arbitrary, capricious, and a total abuse of discretion," the appellate judges ruled
that their publication "advances no legitimate state interest," and could cause "irreparable harm to a professional's reputation."
As for the agency's defense that state law allowed all disciplinary proceedings—whether favorable or not—to be made public,
the judges described it as "utterly devoid of logic." They overruled the trial judge, and ordered the BPMC to remove the unfounded
charges against Dr. A from its Web site.
The BPMC appealed, but the state's highest court affirmed the appellate decision. The high court judges described as "unrealistic"
the Bureau's argument that a doctor's reputation wouldn't be harmed by the knowledge of charges against him if the public
knows they were dismissed.
