Academic journal article American Journal of Law & Medicine

Redefining the Physician Selection Process and Rewriting Medical Malpractice Settlement Disclosure Webpages

Academic journal article American Journal of Law & Medicine

Redefining the Physician Selection Process and Rewriting Medical Malpractice Settlement Disclosure Webpages

Article excerpt

I. INTRODUCTION

Consider a mother of two who works full-time as a secretary in order to provide for her family. For several months in early 2000, she had excruciating lower back pain-the consequences, she believed, of playing high-school and college field-hockey. At work, she was unable to stand up from her chair without tremendous pain; at home, she was unable to sleep soundly. After visiting several physicians and undergoing a battery of diagnostic tests, the need for surgery became apparent. She consulted an orthopedic surgeon and was impressed with his qualifications. After informing her employer and seeking the advice of her family and friends, she consented to surgery. What the mother of two did not know, however, was that she had entrusted her life and livelihood to a surgeon who, in the ten years preceding her surgery, had settled twelve medical malpractice claims for an average of just under $300,000 per claim.1

Nearly every new parent faces a more common situation. Imagine that you just welcomed a beautiful baby girl into your life, and must now begin looking for a pediatrician. No one short of the most outstanding pediatrician will suffice. Your friend recommends Doctor Mary, who recently finished her residency and moved to your state. She has impeccable credentials and her office is only a ten-minute drive from your home. She has been practicing there for two years. You met Doctor Mary and believe that she is very friendly, caring, and well qualified. Before entrusting her to treat your baby girl, would you like to know that in her two years of practice she has settled two malpractice claims, one for $74,000, and the other for $71,000?

Beginning in 1986, the Health Care Quality Improvement Act required that all physicians' medical malpractice settlements be reported to, and housed in, a National Practitioner Data Bank (NPDB).2 The information in the NPDB is not, and has never been, publicly accessible.3 In 1996, after several failed legislative attempts to open the NPDB to public inspection, states began implementing publicly accessible "physician profiles" to provide comparable physician malpractice settlement information.4

Despite nearly ten years of physician profile proliferation, there remain several fundamental flaws in states' efforts. First, advocates' public policy arguments to publicly disseminate physicians' malpractice settlement histories are unpersuasive. Second, many consumers lack the requisite background to understand how the dynamic between insurers, physicians, plaintiffs, their attorneys, and the expense of litigation affects reported malpractice information. Third, many studies concerning the correlation between malpractice settlements and future medical negligence have reached conflicting conclusions, such that there may be no predictive value to settlement reporting, and therefore the premise for allowing public access may itself be flawed.5 Finally, because many physician profile statutes-particularly as they relate to malpractice settlement information-reflect a compromise between advocates and opponents of settlement disclosure, disclosure mechanisms are often complicated and may hinder consumers from properly using settlement information in their physician selection processes.6

By way of example, every state provides publicly accessible physician profiles via the Internet. Of these states, fourteen currently provide medical malpractice settlement information available through the Internet.7 Of these fourteen states, however, only seven would disclose the settlement information of Doctor Mary, the new pediatrician, and the presentation of the settlement information would vary greatly between states.8 The remaining seven states' websites would provide no settlement information under Doctor Mary's profile.

Although a determinative assessment of the public policy behind medical malpractice settlement disclosure webpages is significantly beyond the scope of this article, it is my aim to identify the shortcomings in rationales proffered by advocates and legislators, and illustrate that the public policy behind disclosing malpractice settlement histories, at the very least, should be reconsidered. …

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