American Journal of Law & Medicine

Developing issues under the Massachusetts 'Physician Profile' Act.

I. INTRODUCTION

Massachusetts recently became the first state in the United States to publish physician malpractice histories and hospital disciplinary records.(1) On August 9, 1996, Governor William F. Weld signed the Physician Profile Act (Profile Act or Act) into law, making "profiles" of the Commonwealth's approximately twenty-seven thousand doctors available to the public.(2) Under the Act, the Massachusetts Board of Registration in Medicine (Board) provides information on physicians' insurance plans, specialties, training, honors, and malpractice histories over a toll-free telephone number, through the Internet and on CD-ROM.(3)

The Act developed partially as a legislative response to a series of Boston Globe articles appearing in late 1994 which savaged the Board.(4) Spotlighting a number of high-profile iatrogenic incidents,(5) this highly charged series of articles, accompanied by a blistering editorial, alleged that some patients suffered substandard medical care at the hands of physicians who had been sued repeatedly for malpractice but never disciplined by the Board.(6) These articles concluded that existing practices did not present consumers(7) with sufficient information about their physicians to form useful conclusions about the quality of their health care.(8) Almost immediately after this series was published, the Office of Consumer Affairs and Business Regulation convened a Special Advisory Committee (Committee) to examine "what information held by the Board should be disclosed and the most effective means for disclosing it."(9) The Committee reviewed the availability of physician-specific information and received testimony from various sources.(10) Commenting on the public's interest in physician-specific information, the Chairman of the Committee remarked:

The one clear consensus that has emerged from the national debate on

health care is that the American people want a system that permits them

to choose their own doctors. It is important that this be an informed

choice, because the promise of better treatment and new cures through

modern high-tech medicine also carries with it an element of risk.(11)

In response to the formation of the Committee, the Massachusetts Medical Society (MMS) introduced legislation to broaden the Board's disclosure policy.(12) Soon afterward, the Committee issued its findings, including a determination that the Board "leaned too far on the side of protecting the confidentiality of its records"(13) and that consumers would benefit from publication of "physician profiles."(14) The MMS's legislation significantly changed, until it nearly mirrored the Committee's recommendations.(15) In its final form, the Physician Profile Act provides information in a variety of categories, including physician criminal histories,(16) Board final disciplinary actions,(17) medical malpractice judgments, arbitration awards, and settled claims.(18) The project cost about $250,000 to establish and will cost 5100,000 annually to maintain.(19)

Prior to the Act, the Board held very little of this information confidentially,(20) but accessing physician-specific information was both time-consuming and difficult for consumers.(21) Since passage of the Act, the "profiles" have become an extremely popular means to receive information on physicians practicing in the Commonwealth.(22) Part of the Profile Act's purpose is to give consumers greater confidence in their selection of physicians.(23) As growing numbers enroll in health maintenance organizations and face the daunting task of choosing a new doctor from a list of hundreds of physicians, the public demand for physician-specific information may in-crease.(24) This legislation has already acted as a template for other states seeking to improve their own health care markets.(25)

Although both the media and consumer groups have shown wide respect for the profile program,(26) various critics raised questions about the Act's means,(27) constitutionality,(28) and consequences.(29) Opponents of the Act contend that presenting physician-specific malpractice histories will unduly harm competent physicians, because studies have shown that malpractice claims are not linked to the technical competence of individual physicians.(30) These opponents also postulate that the public will misinterpret malpractice history information(31) and punish otherwise capable physicians who treat high-risk patients.(32) This Note demonstrates that physician malpractice histories are properly linked to primary care physicians' interpersonal skills, and are thus a useful, if limited, tool for consumer choice.

Critics argue that dissemination of physician-specific information violates physicians' right to privacy, especially when the profiles include references to specific instances of settlement.(33) Opponents also note the reliance that physicians (and their attorneys) placed in the limited dissemination of settlement information.(34) This Note canvasses the constitutional right to privacy and demonstrates that a physician's limited privacy interest in malpractice information will not constitutionally bar dissemination by the Act.

One aspect not yet addressed by commentators is the Act's effect on physicians' settlement practices. Although parties once kept settlements relatively private,(35) the profiles will now publish settlement information. Physicians will therefore find settlement less palatable under the Act. As a result, more physicians will seek to litigate claims that they would have otherwise chosen to settle. Where physicians retain control over litigation, more trials will result. Under insurance policies that grant control over malpractice litigation to insurers, the Act heightens the conflicts of interest already present in insurer-sponsored malpractice defense litigation.

Part II of this Note examines the Profile Act and its requirements. Part III demonstrates that malpractice information is a useful indicator for consumer choice, even though it is not linked to physician technical competence. Part IV looks to physicians' privacy concerns and shows that the Act does not impermissibly trammel on privacy interests. Part V examines the Profile Act's effect on settlement practices and concludes that this new legislation will increase litigation and heighten the already existing conflicts of interest between physicians and their malpractice insurers.

II. THE PHYSICIAN PROFILE ACT

If a little knowledge is a dangerous thing,

where is the man who has so much as to be out of danger?

--T.H. Huxley (1877)(36)

The Board of Registration in Medicine, a government agency, licenses and disciplines physicians practicing in Massachusetts.(37) As part of this process, the Board determines whether applicants have adequate education, ability and character to merit the issuance of a license.(38) The Board therefore requires applicants to disclose information about their qualifications.(39) Practicing physicians must update this information biannually in license renewal procedures.(40) The Massachusetts Public Records Law(41) governs records maintained by the Board of Registration in Medicine.(42) Originally, data within the Board's files were not public records if the Board determined that disclosure would lead to an unwarranted invasion of the physician's privacy.(43) The new Profile Act alters this by requiring the Board to create individual profiles on licensees that the Board can disseminate to the public. These profiles will include information that the Board formerly held confidentially.(44) Much of the information provided in the profiles is noncontroversial,(45) including: the names of the undergraduate and medical schools that the physician attended;(46) the number of years practiced;(47) the physician's primary practice setting;(48) whether the physician participates in Medicaid;(49) the physician's peer-reviewed publications;(50) any specialty board certifications;51 and professional or community service activities and awards.(52)

Other aspects of the profiles, such as the publication of physicians' criminal records, are controversial. The Board receives information regarding physician criminal behavior directly from courts as well as from the doctors themselves.(53) Even before passage of the Act, Massachusetts law required clerks of court to report any felony or "crime in connection with the practice of medicine" to the Board.(54) As one Committee member noted, "criminal convictions of physicians were already in the public domain, since criminal trials are almost always public prosecutions."(55) In fact, Massachusetts law required the Board to provide information about physician criminal convictions of "crime[s] in connection with the practice of medicine"(56) on specific requests from the public.(57) Historically, however, court records were incomplete.(58) Thus, in the absence of physician notoriety or laborious searches through court records, the average consumer had limited access to physicians' criminal records.(59)

Opponents of physician-specific criminal records disclosure contend that when a particular crime is not directly related to the practice of medicine, patients have no relevant interest in the conviction records, so the Board should not include such information in the profiles.(60) The Committee reasoned, however, that there was no justification for withholding information comprised of otherwise available public records.(61) "Most patients would say that moral character affects their willingness to trust, and that criminal behavior illuminates character."(62) Similarly, "[i]f the defendant doctor's activity was serious enough to warrant public prosecution, and ultimately resulted in a conviction, then there seems little justification for not making [information regarding] that conviction more easily available to patients."(63) The Profile Act expands both the clerk reporting mandate to include convictions of any crime(64) and the public disclosure requirement to include all convictions for felonies and "serious misdemeanors as determined by the [B]oard" within the past ten years.(65) The Board deems a physician convicted of a crime if he pleads guilty or is adjudged guilty by a court of competent jurisdiction,(66) or if the physician pleads nolo contendere.(67) The definition of "serious misdemeanor" in this context is currently unclear.

The Committee also reviewed the controversy regarding disclosure of pending criminal charges, acquittals, and dismissed indictments, when it considered Board dissemination of criminal histories.(68) It opined that the potential for unmerited harm to a physician's reputation outweighed the public interest in publication of mere claims and charges, which have yet to undergo the adversarial process to a final resolution.(69) Accordingly, the profiles do not provide any such pending criminal claim information.(70)

The Committee also considered the publication of Board disciplinary actions.(71) As one Committee member noted, "[s]tates impose licensing sanctions against physicians as a remedy of last resort to protect the public, to send deterrent messages to the profession, and to reprimand physicians deemed to have engaged in sub-standard practice."(72) Before the Act, the Board made only its own final dispositions(73) (including dismissed claims)(74) available to the public. The Profile Act continues this policy, by noting any final board disciplinary actions against a physician within the past ten years.(75) The profiles also include information on final disciplinary actions taken by other states' disciplinary boards.(76) Final board disciplinary actions against physicians prior to this ten-year span will presumably remain available to the public on specific request; however, the profiles themselves will not reproduce these records.

Before passage of the Profile Act, the Board kept hospital in-house disciplinary actions confidential unless disclosure was "necessary to enable the [B]oard to use the information in a disciplinary proceeding against [a physician]."(77) Hospitals and health care facilities in Massachusetts must report to the Board after taking any disciplinary actions against physicians for reasons related to competence.(78) When considering the issue of disciplinary action confidentiality, the Committee felt the Board had over-protected its records.(79) Hospitals and health care facilities typically take disciplinary action only after affording extensive procedural safeguards, and usually only when the "incident is extremely serious or is consistent with a prior history of competency issues."(80) The Committee thus insisted that release of hospital and health care facilities' disciplinary actions would benefit the public with minimal risk of unfair prejudice to physicians.(81) The new Profile Act modified the previously existing law(82) and requires publication of revocations and involuntary restrictions of hospital privileges for reasons related to competence or character.(83)

The Committee also noted the small number of mandated reports that the Board received from licensed facilities.(84) By late 1995, 128 Massachusetts hospitals reported to the Board as required by law.(85) During the years 1990 to 1993, the Board received, on average, only 37.5 disciplinary reports per year from these reporting facilities.(86) During those three years, most Massachusetts hospitals reported no disciplinary actions at all.(87)

The Massachusetts experience is not unique.... [Recent reports by the

Inspector General of the U.S. Department of Heath and Human

Services indicated] a dismal response by hospitals to [their] statutory

requirement to report disciplinary actions to the National Practitioner

Data Bank (Data Bank). The Inspector General found that

approximately 75 percent of the nation's hospitals had not reported a single

adverse action to the Data Bank from its inception in September 1990

through December 1993. By one measure, Massachusetts ranks 37th in

the rate of its hospitals[] reporting adverse actions. The reporting rate

for Massachusetts is only 1.7 adverse actions per 1,000 hospital beds.

The range for all states is from 8.5 to .7; the median rate is 2.50.(88)

The Profile Act adds teeth to the disciplinary action reporting requirements by increasing the fine for hospital failure to comply from one thousand dollars(89) to ten thousand dollars.(90)

The Committee recommended expansion of the Board's authority to review hospital documents for compliance with reporting provisions.(91) The Committee would have therefore required hospitals and other health care facilities to report all dispositions in professional conduct cases, including those that did not result in a final determination.(92) Similarly, the Committee recommended that hospitals and health care facilities report all "significant maloccurances" to the Board.(93) The Profile Act does not address these matters, nor is the legislature considering any bill that would permit such involvement.(94)

The Massachusetts legislature passed statutes(95) (and the Board promulgated concordant regulations)(96) "to assist the physicians and health care institutions of the Commonwealth in their efforts to identify problems in practice before they occur and to put in place preventive measures designed to minimize or eliminate substandard practice."(97) These laws and regulations create a system of peer review; the Board keeps information generated in this process strictly confidential.(98) The statutes grant a broad privilege of confidentiality to participants in the peer review process.(99) Parties to a lawsuit cannot subpoena the peer review records, and plaintiffs may not enter such records into evidence in any judicial or administrative proceeding.(100) While the Committee received testimony recommending modification of this broad privilege,(101) neither the Committee's recommendations nor the Profile Act modified this policy.

Health care providers must report any physician to the Board where a reasonable person could believe that the physician is chemically dependent.(102) The Board may exempt health care providers from reporting requirements, if the physician complies with a Board-approved drug or alcohol program.(103) Board regulations only provide this "no-report" option when no actual or threatened physical harm exists.(104) The Committee recognized chemical dependency as a very serious problem among physicians,(105) and consumers expressed an interest in receiving chemical dependency information.(106) The Committee, however, recognized that "physicians in recovery are patients themselves and . . . should receive the same confidentiality consideration afforded other patients."(107) Thus, the profiles do not include information about physician chemical dependency.(108)

Publication of physician-specific malpractice histories is the most contentious issue raised by the Profile Act.(109) The Board obtains information concerning medical malpractice claims and settlements from three sources.(110) First, the Board requires physicians to disclose information regarding claims, settlements, and verdicts on their biannual license renewal applications.(111) Second, insurance companies in Massachusetts must report final dispositions of malpractice claims.(112) Insurance companies must also disclose settlements of such claims, whether or not the plaintiff files a civil complaint.(113) Finally, Massachusetts law requires clerks of court to report to the Board the findings of any medical malpractice tribunal.(114) Clerks must also report any judgment, settlement or other final disposition of malpractice cases filed in a Massachusetts court.(115) Before passage of the Act, the Board permitted public access to information received from the court system, but only on specific requests from the public.(116) The Board did not publicly release information regarding confidential settlements of nonfiled malpractice claims.(117) Indeed, before the Profile Act, the Board lacked a policy or procedure to publish malpractice information on request as required by law.(118) As a result, the Board disclosed relatively small amounts of malpractice information to the public. The current profiles disclose all medical malpractice court and arbitration awards paid to a complaining party within the past ten years.(119) As with pending criminal actions, however, the Board does not disseminate information on pending malpractice claims.(120)

The profiles will present malpractice information in a minimum of three categories indicating the awards or settlement's "level of significance."(121) Although the Act permits the Board to report sums paid, the Board structured the profiles so they do not disclose dollar figures.(122) Instead, the profiles place information concerning paid medical malpractice claims in context by comparing medical malpractice judgment awards and settlements of an individual physician with other physicians in the same area of practice.(123) When presenting information concerning settlements, the Act requires the Board to include the following statement:

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.(124)

The Act permits the Board to include additional explanatory information as necessary to elucidate settlement information.(125) Although the Act requires the profile program to give physicians a chance to review their own profiles for factual errors before publication,(126) correcting errors is not as easy as one might expect-during the first days of public access doctors swamped the Board with calls to correct errors in their profiles.(127)

The Board will disseminate physician profiles through electronic media (i.e., on CD-ROM or over the Internet) after May 1, 1997.(128) Concerns over the safety of listed physicians delayed plans to disseminate profiles through these media.(129) Specifically, certain physicians feared that political extremist groups could use information in the profiles to commit terrorist acts against doctors practicing in the Commonwealth.(130) As a result, physicians may withhold information on appointments to medical school faculties, peer reviewed publications, and community service activities from their profiles,(131) even though commentators considered presentation of such information as a boon to practitioners.(132) Before permitting public access to the profiles via electronic media, the Board will study the impact of publication on the personal safety of physicians and their families, and will report its findings to the legislature's Joint Committee on Health Care.(133) The Board will then promulgate regulations to reduce or eliminate the potential risk that any information in the profiles may jeopardize the personal safety of physicians or their families.(134)

III. MALPRACTICE HISTORIES AND PHYSICIAN QUALITY

Lady Visitor: "Oh, that's your doctor, is it? What sort of a doctor is he!"

Lady Resident: "Oh, well, I don't know very much about his ability, but he's got a very good bedside manner!"

--Punch (1884)(135)

While some advocates of the Profile Act have praised its potential to heighten patient autonomy, the Act is better understood as a tool to increase the bargaining power of individual consumers in the market for health care. Nevertheless, recent studies have raised questions about the utility of malpractice information and have disputed the causal link between malpractice histories and physician skills. This Part addresses these issues and concludes that malpractice information is a useful indicator for consumer choice.

Disclosure of malpractice information is the most contested aspect of the Profile Act.(136) Most major empirical studies demonstrate that only ten to twelve percent of chart-demonstrated medical malpractice results in legal suit.(137) Indeed, although one percent of hospitalized patients suffer a significant injury attributable to negligence, less than two percent of these patients actually initiate a malpractice claim.(138) Not surprisingly, only a minority of Massachusetts doctors have any negative indicators in their profiles: ninety-two percent of the over twenty-seven thousand doctors licensed in Massachusetts have no blemishes on their profiles whatsoever.(139) Of the remaining, 1764 physicians made malpractice payments in the past ten years.(140) Hospitals reported disciplinary actions against seventy-four Massachusetts physicians.(141) From 1986 to 1996, the Board of Registration disciplined 360 physicians.(142) Also during this period, Massachusetts courts criminally convicted four practicing physicians.(143)

Advocates of malpractice disclosure requirements like the Act, typically premise their support on two central concepts: patients' personal autonomy and economics.(144) One supporter of the Act has described the profiles as a function of informed consent.(145) Another polemic postulated that "patient autonomy is the backbone of the doctrine of informed consent . . . . Providing patients . . . with provider-specific quality-of-care data will increase their ability to make a more informed decision . . . ."(146) The Massachusetts legislature has passed statutes mandating disclosure of issues of concern to patients, including physician financial interests.(147) Publication programs such as the Profile Act, however, are not synonymous with traditional notions of informed consent.(148) Under the common law, the informed consent doctrine requires a physician to "disclose in a reasonable manner all significant medical information that [a] physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure."(149) By this standard, materiality is a

function not only of the severity of the injury, but also of the likelihood

that it will occur. Regardless of the severity of a potential injury, if the

probability that the injury will occur is so small as to be practically

nonexistent, then the possibility of that injury occurring cannot be

considered a material factor.(150)

Louisiana has permitted "failure to inform" suits in cases where a physician failed to disclose his own chronic alcohol abuse.(151) At least one (non-Massachusetts) court interpreting "informed consent" required a physician to disclose both the general statistical success rate for a given procedure as well as the physician's particular experience with that procedure.(152) Massachusetts has not expanded the doctrine to require physicians to disclose malpractice and criminal histories, Board sanctions, or hospital disciplinary actions unrelated to the patient's treatment.(153) In Massachusetts, informed consent requires a physician to disclose to his patient information about the specific procedure that that patient will undergo.(154) Unlike informed consent, the Act does not mandate physician disclosure(155) (as patients receive information from the Board and not from the physicians themselves). Instead, the Act requires disclosure of information unrelated to any particular course of treatment. Thus, although consistent with the goals of informed consent, the Act's methods do not fit squarely within the common law doctrine.

Supporters also backed the Profile Act on more ethical and philosophical concepts of autonomy. One commentator characterized autonomy as the "core legal and ethical principle that underlies all human interaction in medicine."(156) Though highly regarded, the notion of personal autonomy consistently eludes precise definition.(157) Analysis of the matter perhaps starts with the premise of "thorough self-determination" in the patient's medical decision making.(158) This concept of autonomy relies on effective deliberation: it is maximized when a patient makes a decision based on an adequate understanding of the situation and the possible alternative courses of action.(159) Nevertheless, such an interpretation is arguably overreaching, idealistic, and impractical.(160) Goals of "autonomous decision making" in this sense are not unique to the health care context;(161) any increase in consumer information in any market--would thus improve self-determination and heighten this form of autonomy.(162)

Another interpretation of this philosophy states that autonomy is maximized when "each person is in control of his own person, including his body and mind."(163) This interpretation adds little to understanding the Physician Profile Act. The Profile Act neither adds to nor takes away from this aspect of autonomy, as information provided by the profiles does not directly relate to the care any specific patient will receive. For example, the profiles do not provide information about specific instances of malpractice, but merely present general data on the relative size of that physician's payments. To determine whether a physician's malpractice history resulted from a specific treatment that that physician provided--whether that doctor has botched the same treatment before--patients must still access the physician's court records or the Board's insurance payment records.

Although amorphous concepts of autonomy do not further practical analysis of the profiles, one facet proves useful. One can think of autonomy as the bundle of personal choices that constitutes an individual's existence.(164) In this sense, autonomy closely resembles consumer preference.(165) Contributing to the runaway cost of health care is consumers' inability to compare health providers' cost and quality,(166) the two factors consumers traditionally use in the marketplace to value goods or services.(167) Consumers had no incentive to evaluate these aspects, as insurers distorted costs to individuals and shifted it to employers.(168) The resulting evolution of managed care "succeeded in creating a market at a wholesale level, between care providers and corporate benefits managers. The former are scrambling to become more efficient producers; the latter are shopping like shoppers should, though with a worrisome bias toward price rather than quality."(169) Under the Act, however, consumers can now more readily determine their own economic preferences: they can compare an indicator of physician quality. Supporters of the Profile Act thus argue that providing reliable information will spur the development of a "real marketplace" at the consumer level, as consumers become able to compare providers.(170)

"Many observers believe that well-informed consumers have a positive effect on the overall market."(171) Advocates base this premise on the competition-generating effect of information: with enough well-informed consumers, suppliers of goods and services must further compete for consumers' business.(172) Consumer information becomes more important as market competition increases.(173) In the increasingly competitive medical field,(174) presenting information in its myriad forms will increase competition and potentially help control costs.

In addition, well-informed consumers make better decisions.(175) When presented with a full range of options and information about these options, consumers make purchases that most accurately represent their interests.(176) The added efficiency created by information access leads to an increase in real income for consumers and will improve the efficiency of the medical care market.(177) Given the growing number of health care providers, information access may substantially increase consumer welfare.(178) Indeed, as one commentator noted:

An analogy to the world of commerce may help to explain why people

should not--on economic grounds, in any event--have a right to conceal

material facts about themselves. We think it is wrong (and inefficient)

that the law should permit a seller in hawking his wares to make

false or incomplete representations as to their quality. But people

"sell" themselves as well as their goods. They profess high standards

of behavior in order to induce others to engage in social or business

dealings with them from which they derive an advantage but at the

same time they conceal some of the facts that these acquaintances

would find useful in forming an accurate picture of their character.(179)

Opponents of disclosure argue that malpractice information does not adequately represent physician capabilities and that the public fails to appreciate this lack of correlation.(180) "Doctors fear that patients will misinterpret [malpractice] data, which may or may not indicate problems involving clinical competence. . . …

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